AFFIRM; and Opinion Filed August 20, 2018.




                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-17-01193-CR

                          LEONARD DESHAWN SCOTT, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 204th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F14-45581-Q

                              MEMORANDUM OPINION
                          Before Justices Francis, Fillmore, and Whitehill
                                   Opinion by Justice Fillmore

       A jury found Leonard DeShawn Scott guilty of aggravated sexual assault and assessed

punishment at forty years’ imprisonment. In four issues, Scott asserts the evidence is insufficient

to support the judgment, the trial court erred by admitting evidence of extraneous offenses during

the guilt phase of trial, and he received ineffective assistance of counsel. We affirm the trial court’s

judgment.

                                            Background

       M.P. testified that, in 2006, she lived a double life as a registered nurse specializing in

pediatrics and as a “closet user of crack cocaine.” She worked Monday through Thursday, and

over the long weekends, on holidays, on her birthday, or when she had time off work, she would
go on three-or-four-day drug binges. During these binges, M.P. would buy a large quantity of

crack cocaine and use it at a friend’s “smoke house” until she reached a state of “oblivion.”

Sometimes, when M.P. ran out of money, she would commit acts of prostitution so that she could

buy more crack cocaine. M.P.’s binges ended when she ran out of money to buy more drugs or

became too tired to continue.

         On April 19, 2006, M.P. began a crack cocaine binge at her friend’s house. After three or

four days, M.P. was tired and ready to go home. M.P. testified that, on April 22, 2006, she was

walking down the street late at night, flagged down Scott’s passing car, and asked him for a ride

home. Scott agreed to take M.P. home, but told her he needed to first make a stop at his house.

         According to M.P., Scott drove to a dark house and they both went inside. Scott took M.P.

into a room where there were mattresses piled against the windows and walls and sports jerseys

hanging on the wall. Scott pulled out a large gun and informed M.P. that she was going to perform

oral sex on him and on his “homeboys.” M.P. testified that, although Scott never pointed the gun

at her or threatened to kill her, she thought he might kill her if she did not comply. Scott ordered

M.P. to first perform fellatio on him and then on his companions who were waiting in another

room. After M.P. performed fellatio on Scott, he told the next man, “if she doesn’t do it right, let

me know.” According to M.P., there were five men present, but she had to perform fellatio on

only four of them. The fifth male present refused to participate, but simulated having fellatio with

M.P. so she would not get into trouble with Scott. M.P. described Scott as the ringleader of the

group.

         According to M.P., after she performed fellatio on two of his companions, Scott returned

and had sexual intercourse with her. M.P. testified Scott placed a plastic grocery produce bag over




                                                –2–
his penis to use as a condom. M.P. described the intercourse as painful because the bag created

“pressure.”

          M.P. denied consenting to any of the sex acts or receiving money or drugs as compensation

for her services. M.P. estimated the entire ordeal took a couple of hours. After the sexual assaults

were over, the men gave M.P. a 7Up to drink and then left in Scott’s car. M.P. wandered into a

nearby road where a passing motorist saw her sitting on the grass in the roadway median. The

motorist testified at trial that M.P. was crying and obviously upset and in pain. The motorist called

the police.

          After M.P. declined medical attention, Detective Allen Goehring interviewed her at the

police station. Goehring testified he did not obtain much information from M.P. because she was

tired, coming down from being high, and traumatized. One or two days later,1 while trying to

obtain money to buy crack cocaine, M.P. solicited an undercover police officer and was arrested

for prostitution. Goehring interviewed M.P. again at the jail and found her much more coherent

and cooperative than in her first interview. During the second interview, M.P. provided more

details about the sexual assault. She also admitted that she flagged down Scott’s vehicle with the

intent of offering to perform fellatio on him in exchange for twenty dollars. According to

Goehring, some of the details of M.P.’s narrative, such as her description of Scott’s clothes, the

age of Scott’s car, and when Scott told M.P. that he had a gun, changed between the first and

second interviews. Regarding the gun, Goehring testified M.P. never said Scott actually displayed

the gun; rather, she indicated Scott told her he had one, either when she first climbed into his car

(the first interview) or later after she and Scott entered the bedroom where the sexual assault

occurred (the second interview).


   1
       M.P.’s and Goehring’s trial testimonies differed as to the number of days.




                                                                      –3–
       Based on M.P.’s more coherent account and the details she provided about the offense

location, Goehring was able to identify a house where the assault occurred. In discussing the house

with a police sergeant, Goehring learned a missing person report had been filed regarding N.W., a

young woman who lived at that address. N.W.’s mother, B.W., had reported to police that N.W.

had disappeared before a family trip.

       According to B.W., the family trip began on April 22, 2006. N.W., who was almost

eighteen years old at the time, was not home when it was time to leave. B.W. testified N.W. had

been “running with quite a wild crowd,” and had previously hosted parties at the house. Further,

B.W. “had a lotta things stolen” and people had broken into the house. N.W., however, had never

“disappeared” before. B.W. ultimately decided the family would go on the trip without N.W.

B.W.’s family returned from their trip on the evening of April 23, 2006.

       Goehring obtained consent from B.W. to search the house. Inside, Goehring discovered

the bedroom M.P. had described with the mattresses pushed against the walls and sports

memorabilia on the walls. From the floor, officers recovered a plastic grocery produce bag. B.W.

testified the bedroom belonged to her son who was away at college and no one had entered the

bedroom between the time she returned from her trip and the time the police searched the

residence. She also testified that there was no reason why a produce bag would be in her son’s

bedroom.

       B.W. testified that N.W. returned home in May 2006. According to B.W., N.W. had called

a family friend to come and get her from a hotel. B.W. described N.W. as crying hysterically.

N.W. told B.W. that she had been kidnapped and had become part of a “sex ring.” Goehring

testified that he interviewed N.W after she returned home. N.W. told Goehring that she had seen

Scott on April 22, 2006, and he was wearing a dark tank top and baggy blue denim shorts.




                                               –4–
Goehring testified this matched the description M.P gave during her second interview of the

clothes Scott was wearing at the time of the sexual assault.

       N.W. testified she met Scott in 2006 at a convenience store in the same area where the

sexual assaults occurred. N.W. had dropped out of high school, was “running with a bad crowd,”

and was using alcohol and marijuana. Rather than go on her family’s trip in April 2006, N.W.

stayed behind to be with Scott. After her family departed for the trip, N.W. brought Scott to her

house during the day to have sex in her bedroom. N.W. described the sex as consensual, but very

aggressive and indicated Scott used a condom. According to N.W., she and Scott did not go into

her brother’s room, but Scott roamed about the house by himself. N.W. testified Scott knew her

family was out of town and when they would return. According to N.W., Scott wanted her to

become a prostitute as an easy way for them to make money. N.W. testified Scott took her to

Harry Hines Boulevard and left her “on the street to turn tricks.” N.W. returned home about a

month later. N.W. believed Scott carried a gun.

       After interviewing N.W., Goehring prepared a photographic lineup containing Scott’s

picture for M.P. to review. M.P. was unable to identify Scott as the man who sexually assaulted

her.

       The evidence collected at N.W.’s residence was sent to the crime lab for analysis. A

forensic scientist testified the substance recovered from the inside of the plastic bag was tested and

identified as male DNA; however, the identity of the contributor was unknown. This DNA profile

subsequently was compared to a DNA profile obtained from Scott’s buccal swabs.                   The

comparison showed Scott was the contributor of the DNA obtained from the inside of the plastic

bag and the probability of error in the match was one in 5.7 quintillion. DNA testing also

determined that M.P. was the contributor of the DNA found on the outside of the bag and the




                                                 –5–
probability of error in the match was one in 6.57 quadrillion. Scott’s DNA and the DNA of an

unknown female were also found on a pair of underwear collected at N.W.’s house.

          Richardson Police Detective Chiron Hale testified that, in 2014, he was in charge of M.P.’s

still unresolved case when a CODIS match was made to Scott.2 Hale’s interview of Scott was

audiotaped and played for the jury. During the interview, Scott denied sexually assaulting anyone,

engaging in sex involving multiple other men, knowingly having sex with prostitutes or picking

up a “crackhead” on the side of the road, being in the area where the offense occurred, and using

a produce bag as a condom. Hale testified he knew at the time of the interview that Scott previously

had been convicted of sexually assaulting a sixteen-year-old girl.

          The jury also heard evidence about two extraneous offenses involving victims C.S. and

G.G. that occurred within a few miles of where M.P. was sexually assaulted. Dallas Police

Detective Allen Holmes testified he was a patrol officer in the early morning hours of May 2, 2006,

when he responded to a call about a hysterical woman who had entered a pharmacy. When Holmes

arrived, he found C.S. distraught and frantic. C.S. told Holmes that she had been sexually

assaulted. C.S. took Holmes to the location where the offense occurred, which was a townhouse

under construction near the neighborhood where M.P. was assaulted. C.S.’s shoes were outside

in the street. Inside, Holmes found blood, a crack pipe, and a Starbucks coffee cup.

          C.S. told Holmes that she was walking along Forest Lane when a driver approached her

and asked for a date. She was on her way home and declined. She tried to run away, but the man

chased her down and forced her into his car. C.S. said the man took her to the townhouse where

he forced her to perform oral sex, penetrated her vaginally, tried to penetrate her anally, and

ejaculated on her face. The man told C.S. that he had a gun and was going back to his car to get


     2
      CODIS is an acronym for the Combined DNA Index System database of DNA samples sponsored by the Federal Bureau of Investigation.
See TEX. GOV’T CODE ANN. § 411.141(1) (West 2012).




                                                               –6–
it. C.S. ran toward the pharmacy, losing her shoes along the way. C.S. was transported to Parkland

Hospital where DNA evidence was collected. The DNA evidence, however, was not tested at that

time.

        Nine years later, Holmes was a detective and was assigned C.S.’s case as a cold case.

Money was available from a federal grant to test old rape kits, and the DNA evidence recovered

from C.S. was tested. That testing resulted in a CODIS match with Scott’s DNA. Holmes located

C.S., who he described as a “white female” who was living as a homeless, drug-addicted prostitute.

Holmes showed C.S. a photographic lineup that contained Scott’s picture, but C.S. could not

identify Scott as the man who assaulted her. Holmes then showed C.S. a photograph of Scott and

asked her if he had been a consensual sex partner. C.S. told Holmes that Scott was not a consensual

partner. She also said Scott could not have been one of her customers because she generally did

not have sex with African-American men and had a stable “client list” of regular customers whom

she would recognize. On cross-examination, Holmes admitted C.S. had not totally foreclosed the

possibility that she had sex with a black male client.

        In June 2016, Holmes interviewed Scott and asked him about his prior relationships;

whether, nine years earlier, he had sex with prostitutes, had gone to a lot of parties, or had sex with

unknown people; and if he remembered having sex with a white woman. Scott told Holmes that

he had a white girlfriend at one time, but preferred to have sex with black women. Scott also told

Holmes that he had sex with a number of people in that time period, including strippers, but did

not have sex with street prostitutes. Holmes showed Scott a photographic lineup that included a

picture of C.S., and Scott did not identify C.S. as one of his sexual partners.

        A forensic DNA analyst testified Scott’s DNA profile was compared to a DNA profile

obtained from vaginal and facial swabs taken from C.S. following the sexual assault. The




                                                 –7–
comparison showed that Scott was the contributor of that DNA and the probability of error in the

match was one in 47 sextillion for African-American males.

       G.G. testified she was sexually assaulted on March 19, 2006, when she was sixteen years

old. According to G.G., a boy she knew from high school, Marquais, and another man, who she

also knew, persuaded her to leave home with them to make a music demo tape. The men took

G.G. to a motel where there were four men present, but no recording equipment. The motel room

was in the same area where M.P. was assaulted. When G.G. expressed reservations about going

into the room, Marquais told her to “shut up” and gave her a green liquid to drink that made her

feel “fuzzy” and caused her to hallucinate. When she told Marquais that she wanted to leave, he

again told her to “shut up” and gave her more of the green liquid to drink. The men took her into

the bathroom and sexually assaulted her one at a time. Two of the men forced her to perform

fellatio on them. G.G. identified Scott as having forced her to have vaginal intercourse with him.

The men then took her into the bedroom where Marquais held her down on the bed. After again

protesting that she wanted to leave, and being given another cup of the green liquid, G.G. passed

out on the bed. When she woke up the next morning, she was “bloody” and there were condoms

all over the floor. G.G. denied she consented to any of the sex acts. She also denied ever being a

prostitute or a drug user. After a police investigation, Scott was arrested and pleaded guilty to

aggravated sexual assault of G.G.

                                    Sufficiency of the Evidence

       In his second issue, Scott contends the evidence was insufficient to support the judgment

because no rational jury could conclude the State proved beyond a reasonable doubt that M.P. did

not consent to having sex with Scott. As charged in this case, a person commits aggravated sexual

assault by intentionally or knowingly causing the sexual organ of another person, without that




                                               –8–
person’s consent, to contact the sexual organ of another person, including the actor, and by acts or

words occurring in the presence of the victim, threatening to cause the death, serious bodily injury,

or kidnapping of any person. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(iii), (2)(A)(ii) (West

Supp. 2017). As relevant to this case, a sexual assault occurs without consent if “the actor compels

the other person to submit or participate by threatening to use force or violence against the other

person or to cause harm to the other person, and the other person believes that the actor has the

present ability to execute the threat.” Id. at §§ 22.011(b)(2), 22.021(c).

       We view the sufficiency of the evidence under the standard set out in Jackson v. Virginia,

443 U.S. 307, 319 (1979). Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016). We

examine all the evidence in the light most favorable to the verdict and determine whether, based

on that evidence and reasonable inferences therefrom, any rational factfinder could have found the

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v.

State, No. PD-0174-17, 2018 WL 2711145, at *2 (Tex. Crim. App. June 6, 2018). This standard

recognizes “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson,
443 U.S. at 319; see also Nisbett v. State, No. PD-0041-17, 2018 WL 3134030, at *14 (Tex. Crim.

App. June 27, 2018). The factfinder is entitled to judge the credibility of the witnesses and can

choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Zuniga, 2018 WL 2711145, at *2.

       We defer to the factfinder’s determinations of credibility and may not substitute our

judgment for that of the factfinder. Jackson, 443 U.S. at 319; see also Nisbett, 2018 WL 3134030,

at *14 (“An appellate court cannot act as a thirteenth juror and make its own assessment of the

evidence.”). When there is conflicting evidence, we must presume the factfinder resolved the




                                                –9–
conflict in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326; Zuniga, 2018
WL 2711145, at *2. Circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor and, alone, can be sufficient to establish guilt. Nisbett, 2018 WL 3134030, at *14.

“Each fact need not point directly and independently to guilt if the cumulative force of all

incriminating circumstances is sufficient to support the conviction.” Id.

       M.P. testified she did not consent to sexual intercourse with Scott. Scott, however, argues

M.P.’s testimony should be discounted because the described events occurred eleven years prior

to trial and on the fourth day of M.P.’s extended crack cocaine binge.       Scott points to M.P.’s

testimony that, when she was on a binge, she would buy enough crack cocaine to take her to

“oblivion” and the binge would not end until she ran out of money or got so tired she had to stop.

Scott contends that, due to drug use and lack of sleep, M.P. did not remember the events clearly.

Scott also notes that M.P. was arrested within a couple of days after his interaction with her for

soliciting clients for sex in order to obtain the money necessary to buy more crack cocaine,

indicating her crack cocaine binge continued even after the alleged offense occurred.

       Scott hypothesizes that on the night of the offense, M.P. wanted more crack cocaine and

left the drug house to obtain money by performing acts of prostitution. Scott suggests M.P. flagged

him down and engaged in consensual oral sex for money, either in the car or at N.W.’s house.

Scott contends that, because the house was in a nice neighborhood and M.P. thought it belonged

to him, she believed he would have the money she needed to buy more crack cocaine. Scott asserts

it is reasonable to deduce from the evidence that M.P. and Scott agreed to have intercourse for a

fee. Scott further hypothesizes that he discovered he had no condoms and so improvised with the

grocery produce bag. Scott argues it is reasonable to deduce from the evidence that the painful

sex with the grocery bag led to M.P. “not enjoy[ing] herself,” that she and Scott argued, and her




                                               –10–
fee was not paid. Scott theorizes this led to M.P. being kicked out of the house, strung out on

drugs, exhausted, and angry at Scott. Scott asserts nothing M.P. testified to about the event being

a sexual assault “was even remotely true” and no reasonable jury would have believed the

intercourse between Scott and M.P. was not consensual.

       Scott’s “reasonable deductions” and theories directly conflict with M.P.’s testimony. M.P.

testified a man, who was subsequently identified as Scott through DNA testing, lured her into the

car with the offer of a ride home, took her to N.W.’s house instead, sexually assaulted her orally

and vaginally without her consent while threatening her with a gun, and orchestrated three other

sexual assaults against her by his companions. On cross-examination, M.P. flatly denied trial

counsel’s suggestion that she offered to have sex with Scott for money. She admitted there might

be inconsistencies between her testimony and the initial police report about the offense because,

during the initial interview, she was tired, coming down from her binge, and in shock after being

sexually assaulted by several men. However, at trial, M.P. insisted she had a clear recollection of

the offense.

       It was the jury’s prerogative to believe M.P.’s trial testimony and not draw the deductions

Scott would prefer. See Chambers, 805 S.W.2d at 461; see also Zuniga, 2018 WL 2711145, at *2.

Regardless of any conflicts within M.P.’s various accounts to police and her trial testimony, the

jury found her to be credible regarding the sexual assault. We defer to that determination. Jackson,
443 U.S. at 326; Zuniga, 2018 WL 2711145, at *2. We conclude a rational jury could have found

each element of the offense beyond a reasonable doubt. Accordingly, we resolve Scott’s second

issue against him.




                                               –11–
                                 Extraneous Offense Evidence

       In his third and fourth issues, Scott contends the trial court erred by admitting evidence of

the extraneous offenses he committed against C.S. and G.G. Scott specifically argues the only

contested issue at trial was consent and, because neither extraneous offense is probative on that

issue, the extraneous offenses were improper evidence of character conformity.

       We review trial court rulings on the admissibility of evidence under an abuse of discretion

standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “A trial court abuses its

discretion when its decision lies outside the zone of reasonable disagreement.”           Id.   This

discretionary standard of review applies to cases where the ruling at issue involves the

admissibility of extraneous-offense evidence offered to rebut a defensive theory. Dabney v. State,

492 S.W.3d 309, 318 (Tex. Crim. App. 2016).

       Evidence of a “crime, wrong, or other act” is inadmissible to prove a person’s character if

its sole relevance is to show the person acted on a particular occasion in accordance with their

character. TEX. R. EVID. 404(b)(1); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

It may, however, be admissible when it is relevant to a fact of consequence, such as rebutting a

defensive theory, and is not offered to show character conformity. Powell, 63 S.W.3d at 438; see

also TEX. R. EVID. 404(b)(2). Extraneous-offense evidence may be admissible if it “logically

serves to make more or less probable an elemental fact, an evidentiary fact that inferentially leads

to an elemental fact, or defensive evidence that undermines an elemental fact.” Martin v. State,

173 S.W.3d 463, 466 (Tex. Crim. App. 2005). When the defense presents a defensive theory in

opening statement, it may open the door to admission of extraneous-offense evidence relevant to

rebut the defensive theory. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).




                                               –12–
       From opening statement onward, the defense admitted Scott had sexual intercourse with

M.P., but posited that M.P. and Scott engaged in a consensual prostitution transaction. Through

argument and cross-examination of the State’s witnesses, the defense tried to convince the jury

that M.P.’s account was not credible because of her condition at the time of the offense and the

inconsistencies in her interviews with police, and that she had engaged in consensual sex with

Scott. During cross-examination, the defense pressed M.P., unsuccessfully, to admit she had

agreed to have sex with Scott for money so that she could obtain more crack cocaine. The defense

sought to foster the inference that M.P. falsely accused Scott of sexual assault because she had not

been paid for her prostitution services.

       In a sexual assault prosecution, when the defense admits the defendant had sex with the

victim, but raises a theory that the victim consented to the sex acts, the defense places in issue the

defendant’s intent to commit the offense. Casey, 215 S.W.3d at 880; Rubio v. State, 607 S.W.2d
498, 500–01 (Tex. Crim. App. 1980). The State may then offer into evidence extraneous offenses

that are relevant to show lack of consent and intent to commit the offense. Casey, 215 S.W.3d at

879–80; Rubio, 607 S.W.2d at 501. When offered to prove a material fact other than the

defendant’s propensity to commit crimes, evidence showing the defendant used a “distinctive and

idiosyncratic” modus operandi in committing extraneous offenses is a recognized exception to rule

404(b)’s general exclusion of extraneous offense evidence. Martin, 173 S.W.3d at 467–68. Modus

operandi evidence may be used to shed light on a disputed issue of lack of consent. See Casey,
215 S.W.3d at 881.

       The extraneous offenses against C.S. and G.G. share a distinctive and idiosyncratic pattern

with the offense against M.P. All three offenses involved female victims who were lured or forced

into an automobile and driven to another location where the offense took place. All three offenses




                                                –13–
were committed within a span of a few months and took place in proximity with each other. In all

three cases, the assailant or assailants drove away leaving the victim at the offense location. All

three offenses involved victims who were under the influence of intoxicants at the time of the

offense. Two of the offenses involved multiple assailants. Two of the offenses involved threats

of using a gun if the victim did not comply. Two of the offenses involved women who were

approached while walking down the street and who at least sometimes engaged in prostitution.

       By raising the defensive theory that Scott and M.P. engaged in consensual sex acts

involving prostitution, the defense opened the door to the admission of rebuttal evidence that

would be probative of M.P.’s consent and Scott’s intent to sexually assault her. See Casey, 215
S.W.3d at 879–82; Martin, 173 S.W.3d at 466–68, Rubio, 607 S.W.2d at 500–01. This rebuttal

evidence, including evidence of the two extraneous offenses, was relevant for reasons other than

showing character conformity. See Casey, 215 S.W.3d at 880–82; Martin, 173 S.W.3d at 466;

Rubio, 607 S.W.2d at 501; see also TEX. R. EVID. 404(b)(2). Accordingly, we conclude the trial

court did not abuse its discretion by admitting evidence of the extraneous offenses. See Casey,
215 S.W.3d at 879. We resolve Scott’s third and fourth issues against him.

                                Ineffective Assistance of Counsel

       In his first issue, Scott contends trial counsel rendered ineffective assistance by failing to

contest the admissibility of references to extraneous prostitution offenses that occurred during the

testimony of N.W. Scott concedes that generally such a complaint is difficult to raise on direct

appeal because the record does not reflect the rationale for trial counsel’s actions. In this case,

however, Scott contends the record is sufficient because the trial court questioned trial counsel

about why he raised no objection and trial counsel admitted he had not read the State’s rule 404(b)

notice regarding extraneous offenses the State intended to rely on at trial.




                                                –14–
       Scott bears the burden of proving counsel was ineffective by a preponderance of the

evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To prevail on a claim

of ineffective assistance of counsel, Scott must show that (1) trial counsel’s representation fell

below an objective standard of reasonableness and (2) there is a reasonable probability that but for

counsel’s deficient performance, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); see also Miller v. State, 548 S.W.3d
497, 499 (Tex. Crim. App. 2018) (“To prevail on a claim of ineffective assistance of counsel, a

defendant must demonstrate two things: deficient performance and prejudice.”). Scott must prove

both prongs of the test. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The deficient

performance must be affirmatively demonstrated on the record and not require retrospective

speculation. Id.

       In evaluating counsel’s performance, we look to the totality of the representation and the

particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s

assistance was reasonable under the circumstances and consistent with prevailing professional

norms at the time of the alleged error. See Strickland, 466 U.S. at 688; Nava v. State, 415 S.W.3d
289, 307 (Tex. Crim. App. 2013). Our review of counsel’s representation is highly deferential,

and we indulge in a strong presumption that counsel’s conduct was not deficient. See Strickland,
466 U.S. at 689; Nava, 415 S.W.3d at 307–08.            We judge the totality of trial counsel’s

representation rather than focusing narrowly on isolated acts or omissions, and the performance

must be evaluated from the viewpoint of trial counsel at the time of the representation and not with

the benefit of hindsight. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).

       Generally, a silent record that provides no explanation for trial counsel’s actions will not

overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107,




                                               –15–
110–11 (Tex. Crim. App. 2003). Absent an opportunity for trial counsel to explain the conduct in

question, an appellate court should 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) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2001)); see also Ex parte Saenz, 491 S.W.3d 819, 828 (Tex. Crim. App. 2016) (noting

that in absence of evidence of trial counsel’s reasons for challenged conduct, an appellant court

commonly “will assume a strategic motivation if any can possibly be imagined”).

        The record shows N.W. testified without objection that Scott:

       did introduce me to prostitution. He left me [in the] Harry Hines area on the street
       to turn tricks. . . . [H]e’s not a good person. The things that he exposed me to—I
       have four daughters now. I don’t know what I would do if one of my girls was
       exposed to anything that man ever exposed me to in my past back then.

Later, the State asked N.W. to describe the nature of her relationship with Scott at the time she had

sex with him in her house shortly before the alleged offense against M.P. N.W. responded, “He

had started talking about the whole prostitution thing. It was not really something that I wanted to

do.” The State then asked if Scott wanted N.W. to become a prostitute to which she replied, “Yes.

He said it would be a quick easy way for us to make money.”

       Shortly thereafter, the State asked N.W. whether she and Scott stayed in the house after

having sex. N.W. replied that Scott took her “to the Harry Hines area.” When the State asked

N.W. if she knew why Scott was taking her to “the Harry Hines area,” trial counsel objected on

the grounds of relevance and insufficient notice under rule 404(b). See TEX. R. EVID. 404(b)

(prohibiting use of evidence of extraneous offenses to prove defendant’s character but allowing

such evidence with timely notice to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident). The trial court excused the jury and




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held a short hearing during which it chided trial counsel, telling him. “You let her tell her whole

story before we get an objection. . . .”

       The trial court ascertained that the State had twice given the defense timely written notice

of its intent to use the extraneous prostitution offense in its case-in-chief. Trial counsel admitted

he had not read the notices. The trial court determined it would give the jury a limiting instruction

and asked the State to not inquire further into allegations that Scott gave N.W. to another pimp.

When the State asked whether it could go into N.W.’s disappearance for thirty days after going

with Scott to the Harry Hines area, trial counsel objected on the grounds that her disappearance

was related to the prostitution offense. The trial court responded: “Well, its [sic] about time, but

we need— I don’t know that we need to do much further questioning concerning the prostitution

nature of [N.W.] and [Scott’s] relationship. I thought we were concerned that her testimony can

place him at the location of the alleged assault and the time line.” After the jury returned, the State

solicited from N.W. that she left the house with Scott to go to the Harry Hines area and did not

return home until thirty days later.

       Regarding the first Strickland prong, N.W.’s testimony about her relationship with Scott,

in general, was admissible for the very reason the trial court mentioned—it provided probative

evidence that Scott had visited N.W.’s home and he knew her family was away and the house was

empty for the weekend. Therefore, until N.W. began testifying about Scott’s suggestion that she

engage in prostitution, trial counsel’s strategy could have been to not make a meritless objection

in front of the jury. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (counsel not

ineffective for failing to object to admissible evidence). Trial counsel’s reasons for not objecting

once N.W. began testifying that Scott tried to persuade her to become a prostitute are not in the

record. N.W., however, did not testify that Scott forced or coerced her into prostitution. Given




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that trial counsel’s overall strategy was to generate reasonable doubt as to whether Scott’s sex acts

with M.P. were part of a consensual act of prostitution, it arguably could be viewed as positive for

the defense if the evidence showed Scott was focused on consensual prostitution when he was with

N.W. only a few hours before the offense occurred. See Saenz, 491 S.W.3d at 828. When the

State attempted to introduce additional testimony showing Scott became N.W.’s pimp and

eventually gave her to another pimp, Scott objected—arguably because that testimony did not

support the defensive theory.

       Nothing in the record before us shows definitively that trial counsel did not pursue a

reasonable trial strategy while N.W. was testifying. See id.; Thompson, 9 S.W.3d at 814 (declining,

without explanation from counsel, to find counsel ineffective for not objecting to evidence that

counsel may at that moment have viewed as not inadmissible). Scott did not file a motion for new

trial where an adequate record could have been developed exploring trial counsel’s motivations

and trial strategy.   See Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d at 110–11.

Accordingly, Scott failed to establish that his trial counsel’s failure to object was “so outrageous

that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392.

       Finally, while trial counsel’s failure to read the State’s 404(b) notices would appear to be

a departure from the norms of professional conduct, we cannot conclude Scott has shown that, but

for trial counsel’s ineffective assistance, the outcome of this trial would have been different. As

we have already discussed, M.P.’s testimony, the DNA evidence, and the evidence of intent and

lack of consent arising from the extraneous offense evidence, if believed, constituted compelling

evidence of Scott’s guilt. In light of the overwhelming evidence that Scott was guilty of sexually

assaulting M.P., we cannot conclude the evidence Scott was also pressuring a young woman to

become a prostitute had any effect on the jury’s decision.         “An error by counsel, even if




                                               –18–
professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding

if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. Accordingly, Scott has

not met his burden of showing the result would have been different but for trial counsel’s alleged

ineffective assistance. See Strickland, 466 U.S. at 694. We resolve Scott’s first issue against him.

       We affirm the trial court’s judgment.




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)

171193F.U05




                                               –19–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 LEONARD DESHAWN SCOTT,                            On Appeal from the 204th Judicial District
 Appellant                                         Court, Dallas County, Texas,
                                                   Trial Court Cause No. F14-45581-Q.
 No. 05-17-01193-CR        V.                      Opinion delivered by Justice Fillmore,
                                                   Justices Francis and Whitehill participating.
 THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 20th day of August, 2018.




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