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Click here for the full text of this decision FACTS:In September 2005, Thomas Erik Badillo’s stepdaughter J.K., who was 17 years old at the time and lived with her father, went to visit her mother and Badillo. J.K. decided to spend the night and went to sleep in the bed with her mother. She awoke to discover that Badillo was on top of her with his penis inside her vagina. J.K. got up and left the house. She later called her mother and told her what occurred and eventually reported the assault to law enforcement authorities. Lt. Linda Lively of the Fredericksburg Police Department testified she was responsible for the investigation of J.K.’s complaint. Lively interviewed Badillo and later recorded a telephone conversation with him. She also received a faxed, unsigned statement from Badillo. In those communications, Badillo admitted to Lively that he had sex with J.K. several times and that he engaged in intercourse and oral sex with her. At trial, Badillo denied having sex with J.K. and denied sending the fax to Lively, but he did not dispute the contents of the oral recording made by Lively. The Gillespie County grand jury returned a single-count indictment against Badillo, charging him with prohibited sexual conduct. The indictment alleged in part that Badillo did engage in sexual intercourse and “deviant sexual intercourse” with J.K. A jury convicted Badillo of prohibited sexual conduct and sentenced him to a term of four-and-one-half years in prison. In his pro se appeal, Badillo contended that the trial court erred in admitting evidence and charging the jury and that his trial attorney rendered ineffective assistance. HOLDING:Affirmed. On appeal, Badillo did not challenge the sufficiency of the evidence supporting his conviction. In his first point of error, Badillo complained that although the indictment stated he committed prohibited sexual conduct by engaging in sexual intercourse and deviant sexual intercourse, the jury charge application paragraph contained only the allegation of sexual intercourse. Badillo, the court stated, asserted that because the jury charge failed to include the allegation of deviant sexual intercourse, the jury failed to find “all the elements of the indictment” beyond a reasonable doubt. But the court disagreed with Badillo’s assertion. The court explained that the state may charge more than one manner of committing an offense in a single paragraph of an indictment. The state, however, is required to prove only one of the several manners or means alleged. In this case, the court stated, the trial court submitted to the jury only the allegation that Badillo committed prohibited sexual conduct by engaging in sexual intercourse. Because the court found that the trial court correctly charged the jury as to the elements of the offense, the court overruled Badillo’s first point of error. In his second point of error, the court stated, Badillo complained that his trial attorney rendered ineffective assistance to him. To establish ineffective assistance of counsel, the court stated, a defendant must show that trial counsel’s performance was deficient and that the deficient performance prejudiced him. To show deficient performance, the court stated, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness. To show he was prejudiced by his counsel’s deficient performance, a defendant must demonstrate there was a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Badillo first complained that his trial attorney continued to represent him despite his filing of a pro se “Declaration of Conflict Between Attorney and Client” and counsel’s filing a motion to withdraw. Badillo, the court stated, also pointed to a “blank order” as proof that the trial judge permitted his counsel to withdraw. But the court found that the record did not indicate that either motion was presented to the court or ruled on and was silent as to why the motions were not pursued. Thus, the court found that the record failed to affirmatively demonstrate any ineffectiveness on that point. Badillo next complained that his attorney failed to object when the state offered the testimony of two witnesses whose names did not appear on the state’s witness list. Badillo’s attorney, the court stated, filed a motion for discovery requesting that the trial court order the state to produce a witness list. But the record did not indicate whether the trial judge ever ruled on the motion. There is no general constitutional right to discovery in a criminal case, the court stated. Although due process confers upon defendants a right to be informed about the existence of exculpatory evidence, it does not require the prosecution to reveal before trial the names of all witnesses who will testify unfavorably. In addition, the court stated that while Texas Code of Criminal Procedure Art. 39.14 affords a defendant the right to discovery of certain items, it does not mandate disclosure of witnesses generally but only of expert witnesses and then only when ordered by the court. Because the record did not reflect the state was ordered to disclose its witnesses, the court stated that the trial judge properly overruled any objection to the testimony of the two witnesses. Badillo’s attorney therefore did not render ineffective assistance by failing to object to the testimony, the court stated. Next, Badillo complained that his trial attorney rendered ineffective assistance by failing to object when the prosecutor asked him whether he had made “sexual advances” to a former landlady, because the question supposedly violated Texas Rule of Evidence 608 by prejudicing the jury with “irrelevant information.” When the state asked the question, the court noted, Badillo had already testified before the jury that he and his wife had discussed engaging in sexual activity by way of “a threesome”; that in the past he had been addicted to methamphetamine and entered drug rehabilitation on two different occasions to combat the addiction; and that he had taken his wife’s prescription pain medication. Badillo, the court found, made no effort to explain how the testimony affected the outcome of the trial. Thus, the court found that Badillo failed to sustain his burden. Because Badillo failed to demonstrate that his trial attorney’s actions were deficient and that the outcome of the trial would have been different even assuming deficient performance � and given the “overwhelming evidence of his guilt” � the court overruled Badillo’s point of error claiming ineffective assistance of counsel. In his final point of error, Badillo argued the admission of letters he sent to J.K.’s mother violated Art. 39.14, certain provisions of the Texas and U.S. Constitutions, and the rule that the state must disclose exculpatory evidence to a defendant. But the court overruled Badillo’s final point of error. Any discovery under Art. 39.14, the court stated, is triggered only by a court order. Because no order existed in this case and no general constitutional right to discovery exists, Badillo’s complaint on those grounds failed, the court stated. In addition, the court did not find the letters to be exculpatory, because Badillo did not explain how the letters would have been helpful to his defense. OPINION:Hilbig, J.; Angelini, Simmons and Hilbig, JJ.

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