Timothy Allen Harris v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00217-CR
__________________

TIMOTHY ALLEN HARRIS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F20-34740
__________________________________________________________________

MEMORANDUM OPINION

Timothy Allen Harris appeals his conviction for the first-degree felony of

aggravated assault of a family member, against his niece, “Tiffany”. 1 See Tex. Penal

Code Ann. § 22.02(b)(1). The indictment alleged that on or about March 20, 2020,

Harris

We refer to the victim by a pseudonym. See Tex. Const. art. I, § 30(a)(1)
1

(granting crime victims “the right to be treated with fairness and with respect for the
victim’s dignity and privacy throughout the criminal justice process”).
1
intentionally and knowingly and recklessly cause[d] serious bodily
injury to [Tiffany], . . . by the use of a deadly weapon, namely, a
firearm, by shooting [Tiffany] in the back and with said firearm, and
[Tiffany] [] is a family member as defined by Section 71.003 of the
Texas Family Code[.]

The jury found Harris guilty as charged and assessed punishment at seventy-five

years of confinement. The trial court sentenced Harris in accordance with the jury’s

verdict. Harris timely appealed raising three issues. We affirm the trial court’s

judgment.

Evidence at Trial

Tiffany testified that on March 20, 2020, the day she was shot by Harris, her

uncle, she was thirteen or fourteen years old and living at Sunset Way Apartments

with her mother and grandmother. Tiffany testified about the events that preceded

the shooting. She recalled that she was at home that day with her great-grandmother

while her mother was at work, and Harris and her grandmother picked them up from

the apartment. Tiffany recalled they all went to Walmart, she and Harris dropped her

grandmother and great-grandmother off at the nail salon, and she and Harris went to

Harris’s friend’s house where Harris bought what Tiffany believed was synthetic

marijuana, and then she and Harris went to a convenience store. Tiffany testified that

she and Harris went back to the apartment, and he went to the patio and smoked the

substance that she believed was synthetic marijuana. Tiffany recalled that Harris

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often acted paranoid when he smoked synthetic marijuana, which occurred “[m]aybe

every other day before this happened.”

According to Tiffany, Harris came back inside acting paranoid, looked at her

in a sexual way, acted angry, and pulled a gun out. She was scared and ran, but “by

the time [she] took off, [she] was already shot.” Tiffany testified that the first shot

hit her in the back and then there were five or six more shots. She crawled outside

of the house and ultimately collapsed outside. She recalled that people came to her

aid at the scene, she told them what had happened, she went to the hospital, and an

officer came to see her at the hospital. Tiffany agreed at trial that family members

had tried to convince her to drop the charges against Harris. She also agreed that

Harris had made statements to her admitting shooting her and told her that “things

would be okay if [they] could just work it out[.]” Tiffany acknowledged that she

watched some of the testimony from the prior day on YouTube, but she said that it

did not impact her testimony.

Ricky Bass testified that on March 20, 2020, while in her apartment at Sunset

Way Apartments, she heard a series of “booms,” opened her apartment door and saw

Tiffany, who lived in the same building, walking “wobbly[.]” Ricky called Calvin,

her husband who did maintenance work at the complex, and told him he needed to

come check because she initially thought Tiffany was “knocking on doors and

running.” Ricky testified that she saw Tiffany collapse near Building 3. According

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to Ricky, she went back in and from her window she saw a man “hunched over”

Tiffany and, although Ricky did not know at the time who the man was, she

identified him at trial as the defendant, Harris. Harris was no longer near Tiffany

when Ricky went to check on Tiffany, who was in pain and bleeding and said “Help,

I’ve been shot[,]” and Ricky realized the “booms” she heard earlier were gunshots.

Ricky’s husband was already assisting Tiffany. Ricky testified she went back to her

apartment to get her phone to call 911. She later saw Harris get into a car to leave

but he was stopped by the police.

Calvin Bass, a maintenance man at Sunset Way Apartments on the day of the

shooting, testified he was at the complex when he received a call that caused him

concern. He and his co-worker walked to another area of the complex where they

saw Tiffany, whom Calvin was familiar with because he had seen her at apartment

417, stumble and collapse into a grassy area. According to Calvin, when he

approached Tiffany, she appeared to be in pain and raised her shirt to reveal a bullet

hole in her stomach. Calvin asked her what happened, and she replied, “My uncle

shot me.” Calvin used his cell phone to call 911 because Tiffany was in distress.

Calvin testified that he saw Harris come out of the apartment and walk up to Tiffany.

According to Calvin, he did not know Harris’s name or him personally and was only

familiar with him from seeing him going in and out of apartment 417. Calvin told

Harris to “leave her alone[]” and “I’m on the phone with the 911 people[,]” and

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Harris went back inside the apartment and then attempted to leave the complex in a

white car. Calvin testified that even though he believed Harris should not be leaving

the scene, Calvin did not say anything to Harris when Harris left because Calvin was

worried that Harris was armed. As Harris was leaving the scene, law enforcement

arrived, Calvin told them to stop the car Harris was leaving in, and law enforcement

was able to detain Harris at the scene. Law enforcement interviewed Calvin.

Warren Chilo, the other maintenance man working with Calvin that day, also

testified that he saw Tiffany after she collapsed. Chilo testified that when Tiffany

raised her shirt up it was obvious that the bullet had gone through her back and exited

her stomach. According to Chilo, he did not know Tiffany’s name at the time but

knew that she lived in an apartment below Ricky and Calvin. Calvin stayed with

Tiffany and tried to keep her alert until the ambulance arrived. Chilo testified that

prior to the day of the shooting, he had never seen Harris, whom Chilo identified as

the defendant at trial. Chilo recalled that Harris ran to Tiffany and tried to pick her

up and take her back in the house in a rush, but Chilo told him not to touch her and

that she had said her uncle had shot her. According to Chilo, Harris then ran back

into the apartment. Chilo spoke with law enforcement at the scene and later he was

interviewed at the police station. Recordings of the calls to 911 were admitted into

evidence.

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Another neighbor testified that she also lived in the same building as Tiffany

and the neighbor’s son heard a noise that day, looked out the window, and told her

that Tiffany had collapsed downstairs. The neighbor, who had medical training, went

to provide aid to Tiffany, and Tiffany repeatedly told the neighbor that she had been

shot by her uncle. The neighbor testified that while Tiffany was in distress, Harris,

who the neighbor determined was Tiffany’s uncle, came out of the apartment and

tried to leave the scene. The neighbor told Harris, “You shot her[,]” and that he could

not leave, but he “grabbed his head . . . like ‘No, no, no[,]” and got in a white car

and drove off. First responders arrived and the neighbor talked to one of the police

officers that had responded to the scene and then later at the police department.

Detective Tomas Barboza with the Port Arthur Police Department testified

that he went to the scene to investigate. Upon his arrival, officers were already on

the scene, they had stopped a car near the building, and the victim had already been

transferred to the hospital. As lead detective, Barboza determined that thirteen-year-

old Tiffany was the victim, and that Harris had tried to leave the scene in his mother’s

vehicle. Detective Barboza obtained Harris’s mother’s consent to search the vehicle.

Barboza also went into apartment 417 and recalled that it was “in shambles[,]” there

was blood at the scene, and it appeared “there had been a struggle, a good fight in

there, for sure.”

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According to Detective Barboza, at one point, Harris’s mother mentioned a

“Larry Small” as potentially being involved and she did not want to believe her son

had shot Tiffany, but there was no indication from any of the witnesses that any other

person was even there, and Barboza ultimately determined that the people involved

in the struggle were together inside the apartment voluntarily and that the apartment

had not been broken into. During the investigation, Harris admitted to firing a gun.

Three days after the shooting, Detective Barboza visited Tiffany at the hospital.

Tiffany was not able to verbally communicate with Barboza but through her typing

on a digital device Barboza confirmed what other officers had told him about what

had happened at the scene of the shooting, that Harris had shot her, and that she and

Harris were the only ones in the apartment at the time of the shooting. Detective

Barboza recalled that Tiffany received pressure from her family to not pursue

charges against Harris, but that Barboza talked to her and told her to not let anyone

change her mind. Detective Barboza recalled that Tiffany was interviewed at the

Garth House on April 8, 2020, and that what Tiffany reported during that interview

about the shooting was consistent with what she told Barboza at the hospital.

Officer Donald Jackson, a police officer with the Jefferson County

Constable’s Office responded to the scene and, in response to bystanders pointing to

a white Kia Forte, Officer Jackson detained Harris, who was in the car. Officer

Jackson testified that he spoke with Tiffany when she was at the scene, upset and in

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pain, and she said that her uncle, whom she named as “Timothy,” had shot her, and

Officer Jackson asked what Timothy was wearing and she gave a description

matching what Harris was wearing when he was detained. Footage from another

officer’s body camera of Officer Jackson interacting with and detaining Harris at the

scene was admitted and published to the jury. When Officer Jackson went inside the

apartment, he could see it looked like a struggle had occurred, and he found at least

six bullet holes in the sheetrock walls of the living room. A Beretta automatic

handgun was recovered from underneath a mattress in the apartment, and he

collected eight fired shell casings and a bullet projectile from the apartment.

Hunter Jones, a firearms examiner at the Jefferson County crime lab, testified

that a Beretta 9-millimeter Luger caliber firearm admitted as State’s Exhibit No. 49,

eight fired cartridge casings, and a projectile had been submitted to the crime lab for

testing in this case. Jones determined that the eight spent cartridge casings were fired

from State’s Exhibit No. 49, the Beretta 9-millimeter, but his opinion was

inconclusive as to whether the projectile that was submitted to the lab could have

been fired from that firearm because “there was not enough information on the

individual level to determine if it was identified as fired from that firearm or

excluded as being from that firearm.”

During the punishment phase of the trial, Investigator Matt Turner with the

Jefferson County District Attorney’s Office testified as to Harris’s prior convictions

8
including a 2017 conviction for possession of a controlled substance and a 2019

conviction for driving while intoxicated, and judgments for those convictions were

admitted into evidence.

Detective Terry Cater with the Port Arthur Police Department also testified at

the punishment phase of the trial. He became involved when Tiffany reported at the

Garth House interview related to the shooting that Harris had also sexually abused

her from when she was age nine until she was thirteen. Based on Tiffany’s outcry,

Detective Cater began investigating Harris for the offense of continuous sexual

abuse of a child. At a subsequent interview at the Garth House, Tiffany reported

more details about the day of the shooting, that she had wanted Harris’s sexual

assaults to stop, and that it was Detective Cater’s impression that Tiffany’s desire to

have the assaults stop was related to the shooting. According to the detective, a

sexual assault nurse examiner examined Tiffany and Detective Cater prepared a

probable cause affidavit that was submitted to the district attorney’s office.

The Rule

In his first issue, Harris argues that “the trial court erred by allowing a witness

to testify after the witness violated ‘[t]he Rule’ by watching the trial proceedings on

YouTube.” The trial court invoked “the Rule” prior to trial as to the witnesses that

were to testify at trial. According to Harris, Tiffany, the victim, was allowed to

testify after she had watched the trial on YouTube the prior day, and the trial court

9
denied Harris’s request for an evidentiary hearing on the matter outside the jury’s

presence. Harris contends that the trial court allowed Tiffany to testify without

determining if her testimony would have been influenced by what she heard. On

appeal, Harris acknowledges that an exception to The Rule exists for a victim unless

the court determines that the victim’s testimony would be materially affected by

hearing other testimony at trial. Harris does not argue that the trial court abused its

discretion in concluding Tiffany was exempt from The Rule. Instead, he argues that

the trial court was required to conduct a hearing to determine if Tiffany’s testimony

would not be affected by hearing other testimony, which the trial court failed to do.

Rule 614 of the Texas Rules of Evidence, also known as “The Rule,” provides

that “[a]t a party’s request, the court must order witnesses excluded so that they

cannot hear other witnesses’ testimony.” See Tex. R. Evid. 614; see also Guerra v.

State, 771 S.W.2d 453, 474-75 (Tex. Crim. App. 1988) (citing Tex. Code Crim.

Proc. Ann. art. 36.05, which states in part, “in no case where the witnesses are under

[The] [R]ule shall they be allowed to hear any testimony in the case[]”). The purpose

of placing witnesses under Rule 614 is to prevent the testimony of one witness from

influencing the testimony of another witness, consciously or not. Russell v. State,

155 S.W.3d 176, 179 (Tex. Crim. App. 2005). Rule 614 contains four exceptions to

“The Rule” that allow certain witnesses to remain present in the courtroom while

other witnesses testify, including when the witness is “the victim in a criminal case,

10
unless the court determines that the victim’s testimony would be materially affected

by hearing other testimony at the trial.” Tex. R. Evid. 614(a)-(d). The party seeking

to exempt a witness has the burden of showing that the claimed exception applies.

Russell, 155 S.W.3d at 180; see also Peters v. State, 997 S.W.2d 377, 385 (Tex.

App.—Beaumont 1999, no pet.) (applying prior rule) (citing Moore v. State, 882

S.W.2d 844, 848 (Tex. Crim. App. 1994)). Enforcement of Rule 614 and the

application of its exceptions lies within the sound discretion of the trial court. Caron

v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see

also In re D.F.L., No. 09-15-00310-CV, 2016 Tex. App. LEXIS 1167, at *14 (Tex.

App.—Beaumont Feb. 4, 2016, pet. denied) (mem. op.) (“A trial court’s decision to

allow a witness to remain in the courtroom after the Rule is invoked is reviewed for

an abuse of discretion.”).

On the second day of trial, the prosecutor brought this information to the trial

court’s attention before the jury was brought in:

[Prosecutor]: The State’s advised defense counsel that in my
interviewing the complaining witness this morning, it turns out that
she’s watched some portions of the YouTube proceedings yesterday.
So, I continue to interview her, and I will represent to the Court that
portions that she did see - - she didn’t watch the entire proceedings
yesterday. The portion she saw, she indicates that she didn’t hear or see
anything different from what she already knew from personally being
involved in the proceedings itself.
I don’t myself see it as a violation, just a little more of a technical
violation. But I need to - - as an officer of the Court, I’ve got to bring it
to the Court’s attention, as well as the defense attorney. So I’d like to
deal with that before we bring the jury in.
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...
[Defense counsel]: . . . I don’t know what the witness heard, and I have
to . . . request that her testimony be excluded. I don’t know what she
watched or how long she watched it. I just know what she told [the
prosecutor], and he told me - -
...
[Prosecutor]: She’s present upstairs, Judge, if you want to - -
...
THE COURT: We’re not going to do it right now. We’ve got to move
forward. If you want a hearing on it, we’ll have a hearing on it.

[Defense counsel]: I do, your Honor.

THE COURT: Bring the jury in. Thank you. We’ll have a hearing on
it, found out if there’s harm.

After a witness testified but prior to Tiffany’s testimony, the following

exchange occurred outside the jury’s presence:

[Prosecutor]: This is about whether or not - - this is about [Tiffany’s]
violation of the Rule.
...
THE COURT: . . . you’re objecting.

[Defense counsel]: Yes, your Honor.

THE COURT: Why?

[Defense counsel]: I want to know what she heard, what witnesses she
heard and what she remembers about what she’s viewed.

THE COURT: Why?

[Defense counsel]: I want to know if it’ll influence her testimony. . . .

THE COURT: What does the rule of sequestration say? Let me inform
everybody, if you don’t remember.
Rule 614, Excluding Witnesses: “At a party’s request, the Court
must order witnesses excluded, so that they cannot hear other
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witnesses’ testimony, or the Court may do so on its own. But this rule
does not authorize excluding, [under subsection] d, the victim in a
criminal case unless the Court determines that the victim’s testimony
would be materially affected by hearing other testimony of the trial.”
I have not made that finding. It wasn’t asked of me. Unless that
happens, she’s not required to be excluded. In fact, it express[]ly states,
“This rule does not authorize at all excluding the victim.”
What are y’all asking to do? You?

[Defense counsel]: I’m asking . . . the Court to determine if the other
witnesses’ testimony she’s heard will affect her testimony.

THE COURT: You can do that on cross-examination, I think. I mean,
she’s not excluded under the Rule.

Defense counsel then argued that “a hearing should be conducted before [Tiffany]

testifies in front of the jury to see . . . if there is harm.” The trial court responded,

“What matter would it make? She’s excluded under the Rule.” The trial court then

explained to defense counsel that on cross-examination defense counsel could “ferret

out” whether Tiffany’s testimony was influenced by hearing the other testimony.

The trial court stated that this was the proper procedure “unless y’all can tell me

something otherwise or show me a case law that shows that. I can’t find one.” Harris

objected to the trial court’s denial of Harris’s request to hold a hearing to determine

if Tiffany’s testimony had been impacted by the other testimony she had heard, and

Harris asked for a mistrial when the trial court denied his request for a hearing.

Tiffany testified as to her recollection of the events on the day of the shooting.

On cross-examination, Tiffany testified that prior to her testimony she had watched

portions of the prior day’s trial on YouTube, but that none of what she heard
13
impacted her testimony. After this testimony by Tiffany, the following exchange

occurred at the bench and out of the hearing of the jury:

THE COURT: I feel compelled to give an instruction to the jury about
. . . the point that was made, but I don’t want them thinking maybe she’s
violating the Rule. The Rule, we’ll talk about what the exceptions of
the Rule are. . . .

[Prosecutor]: I agree, Judge.

THE COURT: . . . I’m considering doing that. Any objection?

[Prosecutor]: None.

THE COURT: It’s a rule of law.

[Prosecutor]: Right . . . as long as it’s clear that she’s an exception and
didn’t violate it; yes, sir.

THE COURT: That’s all right.

[Defense counsel]: Yes, sir.

When the jury was brought back into the courtroom, the trial court stated the

following to the jury:

Ladies and gentlemen, I’m going to give you an instruction of law
based upon the last testimony. You’ve heard some testimony relating
to questions asked by the defense if she had been watching anything.
And she testified that she saw some YouTube presentation of this case.
As you know, witnesses who were placed under the rule of
sequestration - - that means the witnesses must stay outside and not
discuss things with other witnesses so that their testimony might not
be influenced in some way.
Rule 614, the way we wrote the Rules of Evidence when I was
on the committee, provides that the Court must order witnesses to be
excluded from being present and not hearing other witnesses’[]

14
testimony at any party’s request, or the Court may also do so on its
own. And that was done to the witnesses.
This rule of sequestration does not apply and excludes the victim
of a criminal case unless the Court determines the victim’s testimony
would be materially affected by hearing other testimony. I did not
make that finding. So, she is excluded from that Rule under this case
and was not violating that Rule. Okay. Anything else?

[Prosecutor]: Not on that point, Judge. At this stage the State rests.

We are not aware of any authority requiring a trial court to have a hearing

when determining whether the victim’s testimony would be materially affected by

hearing other testimony at the trial for purposes of determining whether the victim

is or is not exempt under subsection (d) of Rule 614, and Harris has not cited to any

such authority to the trial court or on appeal. Harris did not object to the trial court’s

instruction to the jury explaining that Tiffany was exempt from the Rule. Further,

even if Harris had preserved error as to his appellate argument, Tiffany testified on

cross-examination that prior to her testimony she had watched portions of the prior

day’s trial on YouTube but that none of what she heard impacted her testimony.

Accordingly, the trial court did not abuse its discretion. We overrule issue one.

Ineffective Assistance of Counsel Claim

In his second issue, Harris argues defense counsel provided ineffective

assistance by failing to object to extraneous offense evidence presented by the State

during the punishment stage. Specifically, Harris contends that his trial counsel

failed to object when a detective testified during punishment that Harris had been

15
accused of continuous sexual abuse of a child against Tiffany. According to Harris,

if defense counsel would have objected, the trial court “could have conducted a

balancing test as to whether the admissibility of the evidence against the prejudicial

impact[] [of the evidence] outweighs its probative value.”

A defendant has a Sixth Amendment right to the effective assistance of

counsel at trial. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668,

684-85 (1984). To establish that he received ineffective assistance of counsel, Harris

must demonstrate that (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. See Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at 687).

The party alleging ineffective assistance has the burden to develop fact and details

necessary to support the claim. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994). A party asserting an ineffective-assistance claim must overcome

the “strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance.” See Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999) (citing Strickland, 466 U.S. at 689). To defeat this presumption,

any allegation of ineffectiveness must be firmly grounded in the record so that the

record affirmatively shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d

113, 117 (Tex. Crim. App. 2017). Generally, counsel should be given an opportunity

16
to explain his actions before being found ineffective. Id. In most cases, direct appeal

is an inadequate vehicle for raising an ineffective-assistance claim because the

record is undeveloped and cannot adequately reflect the motives behind trial

counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App.

2003). In the face of a silent record, we cannot know trial counsel’s strategy, so we

will not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (internal quotation omitted). An

appellant’s failure to make either of the required showings of deficient performance

or prejudice defeats the claim of ineffective assistance. Rylander, 101 S.W.3d at 110;

see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.”).

The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and it does not require that counsel must be perfect or that

the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). The appropriate context is the totality of the representation;

counsel should not be judged on isolated portions of the representation. See

Thompson, 9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App.

1990).

17
In this matter, the record is silent on trial counsel’s reasons for not objecting

to Detective Cater’s testimony regarding the alleged sexual assault of Tiffany. Harris

did not file a motion for new trial alleging ineffective assistance of counsel or

otherwise develop a record of trial counsel’s reasons for his actions. Without

testimony from trial counsel, the court must presume counsel had a plausible reason

for his actions. See Broadus v. State, No. 09-19-00438-CR, 2021 Tex. App. LEXIS

2794, at *18 (Tex. App.—Beaumont Apr. 14, 2021, pet. ref’d) (mem. op., not

designated for publication).

The failure to object to extraneous offense evidence may be a sound trial

strategy. See Williams v. State, 417 S.W.3d 162, 183-84 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d) (failure to object to extraneous offense evidence may

constitute “sound and plausible trial strategy[]”); Heiman v. State, 923 S.W.2d 622,

626-27 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (failure to object to

extraneous offense testimony, in absence of record showing counsel’s reasons for

not doing so, was not ineffective assistance because not objecting could have been

plausible trial strategy). In the absence of a record explaining why counsel did not

object, we decline to conclude that counsel’s conduct was so outrageous that no

competent attorney would have engaged in it or that Harris has rebutted the

presumption that counsel’s actions were part of some sound trial strategy. See

Goodspeed, 187 S.W.3d at 392.

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Also, we note that defense counsel’s failure to object to admissible evidence

does not constitute ineffective assistance. See Myers v. State, Nos. 09-14-00365-CR

& 09-14-00366-CR, 2015 Tex. App. LEXIS 7804, at *16 (Tex. App.—Beaumont

July 29, 2015, no pet.) (mem. op., not designated for publication) (citing McFarland

v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds

by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994)); see also Ex parte

Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012) (“The failure to object to . . .

admissible testimony . . . is not ineffective assistance.”).

Article 37.07 of the Code of Criminal Procedure provides that during the

punishment phase of trial, evidence as to any matter deemed relevant to sentencing

may be admitted, including evidence of an extraneous offense shown beyond a

reasonable doubt to have been committed by the defendant. Tex. Code Crim. Proc.

Ann. art. 37.07, § 3(a)(1). Evidence is relevant to sentencing if it is “helpful to the

jury in determining the appropriate sentence for a particular defendant in a particular

case.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). This

includes but is not limited to evidence regarding an extraneous crime or bad act for

which the defendant could be held criminally responsible, regardless of whether the

defendant has previously been charged with or finally convicted of the crime or act.

Id. at 841-42. Prior crimes or bad acts are introduced to provide additional

19
information that the jury may consider in determining what sentence the defendant

should receive. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999).

The second part of the Strickland test also requires an appellant to show that

there is a reasonable probability that the outcome of his case would have been

different but for counsel’s errors. Strickland, 466 U.S. at 694. Having concluded that

Harris failed to satisfy the requirements of the first Strickland prong, we need not

address the second prong. See Williams, 301 S.W.3d at 687. We overrule Harris’s

second issue.

Due Process Claim

In his third issue, Harris argues he was denied due process under article

39.14(h) of the Texas Code of Criminal Procedure when the State failed to timely

provide discovery related to three other pending indictments against another family

member for alleged sexual assault of the complaining witness. See Tex. Code Crim.

Proc. Ann. art. 39.14(h) (“Notwithstanding any other provision of this article, the

state shall disclose to the defendant any exculpatory, impeachment, or mitigating

document, item, or information in the possession, custody, or control of the state that

tends to negate the guilt of the defendant or would tend to reduce the punishment for

the offense charged.”). Harris argues that the discovery related to the other

indictments was not made available to the defense counsel prior to trial. Harris

contends on appeal that the testimony of the complaining witness “was allowed by

20
the trial court as an extraneous offense during the punishment stage of the trial and

defense’s cross examination was insufficient due to the lack of this discovery.” But

the record shows the complaining witness did not testify during the punishment

phase of the trial. Harris does not cite to any part of the appellate record in support

of this issue. See Tex. R. App. P. 38.1(i) (appellant’s brief “must contain a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record[]”).

To preserve an issue for appellate review, the defendant must make a timely

request, objection, or motion stating specific grounds for the ruling he desires the

trial judge to make and obtain a ruling on the objection. Tex. R. App. P. 33.1(a)(1);

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (citing Broxton v. State,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). No objection was made at trial.

Additionally, Harris’s appellate brief states that “[u]pon learning of these

documents, Defense counsel filed a Motion for New Trial with the [trial] Court[,]”

but the appellate record does not include a motion for new trial and the docketing

statement provides no indication that a motion for new trial was filed in the trial

court. We overrule issue three.

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We affirm the trial court’s judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on May 22, 2025
Opinion Delivered July 23, 2025
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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