Appeal from the 506th Judicial District Court Waller County,
Texas Trial Court Cause No. 14-12-14947
consists of Justices Wise, Zimmerer, and Spain.
Darryl Wayne Lindsey, Jr., was convicted by a jury of
aggravated sexual assault of a child and sentenced by the
trial court to sixty years in prison. In four issues,
appellant contends that he received ineffective assistance of
counsel and that the trial court abused its discretion in
making certain rulings. For the reasons explained below, we
2014, the complainant and his younger brother were living
with their father on a 1, 500-acre ranch where the father
worked as a ranch hand. Appellant is the boys' cousin.
The complainant's father arranged for appellant to watch
the boys for a few weeks in August 2014 while the father was
working. In September, the complainant made an outcry to his
father that appellant had sexually abused him and his younger
2017, the State filed an amended indictment alleging that on
or about August 31, 2014, appellant committed the
first-degree felony offense of aggravated assault of the
complainant, a child under the age of fourteen. See
Tex. Penal Code § 22.021. The guilt-innocence phase of
the trial was presented to a jury over three days in August
2018. The evidence included testimony of the complainant, the
complainant's mother and father, law enforcement
officers, and experts. Although the complainant's younger
brother did not testify, the trial court permitted the State
to present evidence of an extraneous offense against the
younger brother based in part on evidence that the
complainant, his younger brother, and the appellant tested
positive for chlamydia, a sexually transmitted disease.
appeal, appellant raises four issues: (1) appellant's
trial counsel was ineffective; (2) the trial court abused its
discretion in ruling that the State's disclosure of
material rebuttal evidence did not violate article 39.14 of
the Texas Code of Criminal Procedure; (3) the trial court
abused its discretion by implying the legal basis for the
State's objections in violation of Rule 103(a) of the
Texas Rules of Evidence; and (4) the trial court abused its
discretion by allowing the admission of a State's exhibit
as rebuttal evidence even though the State failed to provide
adequate notice under the Texas Rules of Evidence and article
Ineffective Assistance of Counsel
first issue, appellant contends that defense counsel was
ineffective based on three acts or omissions: (1) failing to
object to hearsay regarding an alleged extraneous offense
involving the complainant's younger brother; (2) failing
to object to the admission and publication of an exhibit
containing evidence of the alleged extraneous offense; and
(3) failing to adequately investigate appellant's medical
history. Because appellant addresses his first two sub-issues
together, we will do likewise and address appellant's
third sub-issue separately.
Standard of Review and Applicable Law
prevail on a claim of ineffective assistance, an appellant
must prove by a preponderance of the evidence that (1)
counsel's performance was deficient by falling below an
objective standard of reasonableness, and (2) counsel's
deficiency caused the appellant prejudice such that there is
a reasonable probability that, but for counsel's errors,
the result of the proceeding would have been different.
See Strickland v. Washington, 466 U.S. 668, 687-88,
694 (1984); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999). The failure to make the required
showing of either deficient performance or sufficient
prejudice defeats the claim of ineffective assistance.
Thompson, 9 S.W.3d at 813.
evaluating a claim of ineffective assistance, the appellate
court looks to the totality of the representation and the
particular circumstances of the case without the benefit of
hindsight. Lopez v. State, 343 S.W.3d 137, 143 (Tex.
Crim. App. 2011); Thompson, 9 S.W.3d at 813.
Judicial scrutiny of counsel's performance must be highly
deferential, and a reviewing court must indulge a strong
presumption that counsel's conduct was motivated by sound
trial strategy. Rylander v. State, 101 S.3d 107, 110
(Tex. Crim. App. 2003).
a claim of ineffective assistance may not be addressed on
direct appeal because the record is not sufficient to
conclude that counsel's performance was deficient under
the first Strickland prong. See Menefield v.
State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).
Trial counsel should ordinarily be afforded an opportunity to
explain her actions before being denounced as ineffective.
Id. at 593. If trial counsel is not given that
opportunity, then the appellate court should not find
deficient performance unless the challenged conduct was
"so outrageous that no competent attorney would have
engaged in it." Id. (quoting Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Ineffective Assistance Based on Admission of
first two sub-issues, appellant contends that his
counsel's conduct allowed the admission of evidence of an
alleged extraneous offense involving the complainant's
younger brother. Appellant contends that counsel failed to
object to hearsay in one instance and the admission and
publication of a State's exhibit in another instance.
Appellant does not contend that counsel provided ineffective
assistance by failing to object to the admission of evidence
of an extraneous offense.
No objection to hearsay
first sub-issue, appellant argues that counsel failed to
object to hearsay.
record shows that the State called the complainant, then
eleven years old, to testify concerning appellant's
alleged sexual abuse. Shortly after the complainant testified
in detail about how appellant sexually abused him, the State
asked the complainant if appellant "touched anybody
else's body" in his house, and the complainant
answered that appellant touched his younger brother. The
following exchange then occurred:
Q. [Prosecutor:] Okay. How did - how did [appellant] let [the
younger brother] know that he was about to do something to
A. [Complainant:] He said it's your turn, [younger
Q. And did you hear ...