Floyd Marcelius Barnes v. the State of Texas

NO. 12-22-00090-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FLOYD MARCELIUS BARNES, § APPEAL FROM THE 159TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION
Floyd Marcelius Barnes appeals his conviction for attempted sexual assault. In four
issues, Appellant argues that the trial court erred by admitting certain evidence and his trial
counsel was ineffective. We affirm.

BACKGROUND
Appellant was charged by indictment with attempted sexual assault, enhanced by two
prior felony convictions. He pleaded “not guilty,” and the matter proceeded to a jury trial.
At trial, the evidence showed that Anna1 was seated on a bench in front of a barber shop
at around 8:00 p.m. The barber shop lies between a pool hall and a residence. Appellant, who
was familiar to Anna, approached her and asked if she would like a beer. She agreed. When
Anna arose, Appellant grabbed her and pushed her across the ground and into a chain link fence
at the neighboring residence. He pulled up her dress, pulled his pants down, and tried to pull her
underwear down and his penis out while pinning her against the fence. Anna kicked and
screamed at him to stop.
The residence owner, Ernest Owens, heard Anna’s screams and came to her aid. He first
told Appellant to stop, but Appellant ignored him. Owens then retrieved a golf club, again told

1
A pseudonym.
Appellant to stop, and was again ignored. Owens hit Appellant in the head with the club once to
no effect. He hit him again more forcefully, and Appellant backed away. Appellant looked at
Owens and appeared to be in a daze. He then walked a couple of blocks and sat on a street
corner, while Anna left the scene to tend a hand laceration she incurred by grabbing the fence.
Someone other than Anna or Owens alerted the police. After an investigation, the police arrested
Appellant for attempted sexual assault.
Ultimately, the jury found Appellant “guilty” as charged. Appellant pleaded “true” to the
enhancement paragraphs, and the jury assessed his punishment at imprisonment for twenty-seven
years. This appeal followed.

ADMISSIBILITY OF EVIDENCE
In Appellant’s first, second, and third issues, respectively, he argues that the trial court
erred by admitting the police body cam statements of Anna, expert witness testimony regarding
Anna’s credibility, and the police body cam statements of Appellant.
Standard of Review and Applicable Law
We review a trial court’s decision on the admissibility of evidence under an abuse of
discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial
court abuses its discretion when its decision falls outside the zone of reasonable disagreement.
Id. If the trial court’s evidentiary ruling is correct under any applicable theory of law, it will not
be disturbed even if the trial court gave a wrong or insufficient reason for the ruling. Id.
Anna’s Statements
Appellant contends that the trial court erred by admitting Anna’s statements in the body
cam videos because he was denied the opportunity to confront and cross-examine her. Based on
our review of the record, we cannot agree that Appellant was denied the opportunity to confront
and cross-examine Anna.
Anna appeared before the trial court on the first day of testimony. The court warned her
that she could be arrested if she failed to stay or return. Anna was not called to testify that day.
Her body cam statements were admitted without objection.
On the second day of testimony, Daniel Boots, an Angelina County District Attorney’s
office investigator, testified about the difficulties the investigators had locating Anna for trial.
Boots was finally able to locate her in Tyler and serve her with a subpoena on the first day of

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testimony. He spent about twelve hours with Anna that day, and his observations caused him to
question her mental functioning. At times, she appeared to speak to herself and others who were
not present. She held and stared at her subpoena but did not seem to understand what it was. She
often seemed confused and unable to understand spoken information. When Anna was told that
she would need to be available for court the next day and that it might be best that she spend the
night in town, she covered her face, squealed, and made faces indicating discomfort. She
apologized profusely and stated that she was not handling the situation well. Boots testified that
the parties agreed to release Anna from her subpoena. She did not testify at trial.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI.
The main purpose of the Confrontation Clause is to secure the opportunity of cross-examination,
which is the principal means by which a witness’s believability and the truthfulness of her
testimony are tested. Johnson, 490 S.W.3d at 909. Confrontation Clause claims are subject to
preservation requirements under Texas Rule of Appellate Procedure 33.1(a)(1)(A)). Davis v.
State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010).
Because Appellant had the opportunity to object to the admission of Anna’s body cam
statements and failed to do so, we conclude that he failed to preserve this issue for our review.
See TEX. R. APP. P. 33.1(a)(1); Burt, 396 S.W.3d at 577-78. Accordingly, we overrule
Appellant’s first issue.
Credibility Testimony
Appellant contends that the trial court erred by admitting the direct testimony of Norma
Sanford, the sexual assault nurse examiner (SANE), regarding Anna’s credibility because it was
an endorsement of the truthfulness of her statements. Specifically, he complains of the following
testimony:

STATE: And so in terms of [Anna’s] report of what happened to you, what evidence
did you observe in your exam that you feel like was consistent with or corroborated her report?

SANFORD: The—the injuries that I saw to her hands. It was very clear that she had
become entangled in something.

Before a complaint may be presented for appellate review, the record must show that it
was made to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).
An appellant fails to preserve error by failing to object when he has the opportunity. Burt v.

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State, 396 S.W.3d 574, 577-78 (Tex. Crim. App. 2013). Appellant did not object to the
testimony in question. Because Appellant had the opportunity to object to the testimony and
failed to do so, we conclude that he failed to preserve this issue for our review. See TEX. R. APP.
P. 33.1(a)(1); Burt, 396 S.W.3d at 577-78.
Furthermore, even if Appellant preserved his issue, we could not grant him relief. Expert
testimony that decides an ultimate fact for the jury, such as a direct opinion on the truthfulness of
a complainant, is not admissible under Rule 702. Yount v. State, 872 S.W.2d 706, 708 (Tex.
Crim. App. 1993); see TEX. R. EVID. 702 (governing admissibility of expert witness testimony).
However, expert testimony that assists the jury in determining an ultimate fact is admissible. Id.
Here, Sanford did not give a direct opinion that Anna did not fabricate her story and was truthful
about the allegations. We conclude that the trial court would not have erred to overrule an
objection to the testimony. See id.
For the foregoing reasons, we overrule Appellant’s second issue.
Appellant’s Statements
Appellant argues that the trial court erred by admitting the videotaped statements he
made to the police while “under arrest . . .[,] handcuffed, . . . [and] surrounded by at least five
[officers]. He contends that he was under arrest from the time the police approached and
questioned him because, under the circumstances, a reasonable person would believe his liberty
was compromised to the degree associated with formal arrest. The specific circumstances
Appellant cites are that 1) he was handcuffed, 2) he was surrounded by at least five officers with
additional officers patrolling the scene, 3) the officers discussed arresting him, 4) he was not told
he was free to leave and refuse to answer questions, and 5) he was not told why the officers were
asking him questions.
The record does not show that Appellant’s complaint was made to the trial court by a
timely request, objection, or motion. Therefore, we conclude that he has not preserved this issue
for our review. See TEX. R. APP. P. 33.1(a)(1).
Furthermore, even if Appellant preserved his issue, we could not grant him relief. The
prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). Custodial interrogation means questioning

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initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. Id.
In determining whether an individual was in custody, the ultimate inquiry is whether
there was a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528-29, 128 L. Ed.
2d 293 (1994) (per curiam). The determination depends on the objective circumstances, not on
the subjective views of either the interrogating officers or the person being questioned. Id. 511
U.S. at 323, 114 S. Ct. at 1529.
The custody determination is made on an ad hoc basis after considering all the objective
circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). At least four
general situations exist that may constitute custody, including when 1) the suspect is physically
deprived of his freedom of action in a significant way, 2) a law enforcement officer tells the
suspect that he cannot leave, 3) law enforcement officers create a situation that would lead a
reasonable person to believe his freedom of movement is significantly restricted, and 4) probable
cause to arrest exists and law enforcement officers do not tell the suspect he is free to leave. Id.
at 255. In the first through third situations, the restriction on freedom of movement must amount
to the degree associated with an arrest as opposed to an investigative detention. Id. In the fourth
situation, the officer’s knowledge of probable cause must be manifested to the suspect, and
custody is established only if the manifestation of probable cause, combined with other
circumstances, would lead a reasonable person to believe he is under restraint to a degree
associated with an arrest. Id. The reasonable person standard presupposes an innocent person. Id.
at 254.
The record here does not support Appellant’s contention that a reasonable person in his
circumstances would believe his liberty was compromised to the degree associated with formal
arrest. In Officer Adam Coats’s body cam video, Coats approaches Appellant, identifies himself,
and asks how Appellant is doing. He informs Appellant that there is an allegation that he was
taking advantage of a girl, and Appellant appears confused. Coats asks whether Appellant would
like to tell him what happened, and Appellant states, “[Anna].” About that time, Officer Rene
Gutierrez arrives and addresses Appellant.
In Officer Gutierrez’s body cam video, Gutierrez asks Appellant, “What’s up, man?”
Appellant responds, “Just chilling.” Gutierrez responds, “That ain’t what I’m hearing.” Appellant

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tells Gutierrez that he and Anna were chilling at the club, drinking, and smoking weed. At some
point, they began arguing and had an altercation. Gutierrez asks another officer to request
emergency medical services (EMS) for Appellant. Gutierrez handcuffs Appellant and informs
him that he is detained. Gutierrez walks away from Appellant and discusses the situation with
another officer in a low voice. Two officers remained near Appellant while awaiting EMS. They
asked no further nonmedical questions of him.
Officer Gutierrez subsequently spoke with Anna, who told him about the incident. He
then spoke with a sergeant about possibly charging Appellant with attempted sexual assault.
Appellant was not nearby during these conversations. Officer Coats interrogated Appellant at the
hospital after Mirandizing him2 and subsequently arrested him for attempted sexual assault.
Based on the record before us, we cannot conclude that Appellant was in custody when
he made his statements to the police on the street corner. Contrary to Appellant’s assertions, he
was not handcuffed or “surrounded” by officers when he made the statements. He was seated on
the street corner, did not try to leave, and was not told he could not leave. Appellant was not
privy to any of the discussions of possible charges against him. He was informed of an allegation
that he was “taking advantage of a girl,” but not specifically that he was accused of an offense or
that the police found the allegation credible. Under all the circumstances, we conclude that there
was no formal arrest or restraint on freedom of movement of the degree associated with a formal
arrest when Appellant made the statements in question, and the trial court would not have erred
by denying a motion to suppress them. See Stansbury, 511 U.S. at 322, 114 S. Ct. at 1528-29.
For the foregoing reasons, we overrule Appellant’s third issue.

INEFFECTIVE ASSISTANCE OF COUNSEL
In Appellant’s fourth issue, he argues that his trial counsel was ineffective for failing to
raise any objections at trial and presenting only limited evidence during his punishment trial.
Standard of Review and Applicable Law
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel’s performance

2
Appellant does not challenge on appeal the admission of his statements to Officer Coats at the hospital.

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was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant
must “show that counsel’s representation fell below an objective standard of reasonableness.”
Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. An appellant claiming ineffective assistance of counsel must affirmatively prove prejudice
from counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App.
1999).
Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is
Appellant’s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any
allegation of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). Rarely is the record on direct appeal sufficiently developed to fairly
evaluate the merits of a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002).
Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove
both prongs of the Strickland test by a preponderance of the evidence to prevail. Tong, 25
S.W.3d at 712.

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Analysis
Appellant first argues that the cumulative effect of his trial counsel’s errors and
omissions was to deny him a fair trial. Specifically, he observes that his counsel did not object to
the admission of any evidence. Appellant particularly complains that his counsel did not object
to the admission of Anna’s body cam statements, leaving the jury “with but one conclusion, to
take [her] story as true.” The State argues that the trial court might have sustained a
Confrontation Clause objection to Anna’s body cam statements, but any deficiency of
Appellant’s trial counsel in failing to object caused no prejudice to the defense for two reasons.
First, the SANE report and the testimony of Owens and Sanford provided sufficient evidence of
Appellant’s guilt. Second, if Appellant’s trial counsel lodged a successful Confrontation Clause
objection, the State would likely have called Anna to testify. In that case, the State argues, the
court would likely have found Anna incompetent to testify and therefore unavailable.
Consequently, according to the State, the court would have admitted the body cam statements
over Appellant’s Confrontation Clause objection.3
Based on the record before us, we cannot conclude that trial counsel’s performance was
deficient for failing to object to the admission of evidence. Regarding Anna’s body cam
statements, Appellant has not met his burden to overcome the presumption that, under the
circumstances, his trial counsel’s failure to lodge a Confrontation Clause objection might be
considered sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25
S.W.3d at 712. “Cross-examination is inherently risky, and a decision not to cross-examine a
witness is often the result of wisdom acquired by experience in the combat of trial.” Ex parte
McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). “It is frequently a sound trial strategy
not to attack a sympathetic eyewitness without very strong impeachment.” See id.
As the State argues, if Appellant’s trial counsel lodged a successful Confrontation Clause
objection, the State would likely have called Anna to testify. If she testified, Anna would likely
have been a sympathetic witness. She appeared credible and cooperative in the videos. It is also
unlikely that the defense had strong impeachment evidence of Anna. Nothing in the record
indicates that Anna had a motive to fabricate her story. To the contrary, the facts that she left the
scene of the offense, did not call the police, and emphasized to the officers that Appellant had

3
We note that besides a declarant’s unavailability, a prior opportunity to cross-examine is also required to
overcome a Confrontation Clause objection. See Crawford v. Washington, 541 U.S. 36, 59, S. Ct. 1354, 1369, 158
L. Ed.2d 177 (2004).

8
never done anything like that before tend to negate any notion that she fabricated her story.
Under these circumstances, counsel could have reasonably preferred to allow the body cam
statements alone into evidence rather than those statements and Anna’s live testimony.
In addition to keeping a potentially sympathetic witness off the stand, counsel’s decision
not to lodge a Confrontation Clause objection allowed him to attempt to use Anna’s failure to
testify to Appellant’s advantage in closing arguments. First, counsel gave the following reason
for the defense’s decision not to force Anna to testify:

I’m not responsible for the victim, and I in 30 years of practice have never subpoenaed a
witness who is the victim. I don’t want to intimidate them. And that could be charged against
me if they say I somehow pressured them. So I don’t talk to victims mostly for that reason.

Later, counsel attempted to use Anna’s failure to testify as a reason to find Appellant “not guilty”
in the following arguments:

But I don’t think you can make a case beyond a reasonable doubt without the young lady’s
testimony for whatever reason. Not my job to call it. Not my job to prove it. She don’t want to
come up here and face you and tell you the truth, then she has that not to do it, and you have
the obligation to follow the law and not guilty.

Under these circumstances, we cannot say that Appellant has met his burden to overcome
the presumption that his counsel’s decision not to raise a Confrontation Clause objection might
be considered sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25
S.W.3d at 712.
Regarding any other failures to object, Appellant fails to specify what objections his trial
counsel should have made and why the specific evidence was inadmissible. When an appellant
alleges his counsel was deficient in failing to object to the admission of evidence, he must show,
as part of his claim, that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.
Crim. App. 2002). To the extent that Appellant might argue his counsel should have objected to
the admission of the evidence in question in his second and third issues, we concluded above that
there was no error in the admission of that evidence. See Doyle v. State, 875 S.W.2d 21, 23 (Tex.
App.—Tyler 1994, no pet.) (“failure to object to that which is unobjectionable is not ineffective
assistance of counsel”).
Appellant further argues that “‘but for’ trial counsel’s decisions to present only limited
evidence during punishment, there would have been a different result.” We find no merit to this
argument. Defense counsel called Pastor Steven Pinkney of New Beginning Baptist Church,

9
where Appellant was a member, to testify on Appellant’s behalf. Pinkney testified that Appellant
sometimes performed tasks at the church and was always respectful. On cross-examination, he
confirmed that Appellant attended church when he was not in trouble but was intermittently
incarcerated and unable to attend. Appellant neither identifies the additional witnesses who
should have testified nor describes the substance of any potential witness’s testimony. See Ex
parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (to obtain relief on ineffective
assistance claim based on uncalled witness, appellant must show witness was available to testify
and testimony would have benefitted defense).
Because Appellant fails to show that his trial counsel’s performance was deficient, he
fails to meet his burden of proving his counsel’s ineffectiveness. See Strickland, 466 U.S. at 687,
104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Accordingly, we overrule Appellant’s fourth issue.

DISPOSITION
Having overruled Appellant’s first through fourth issues, we affirm the trial court’s
judgment.
GREG NEELEY
Justice

Opinion delivered June 14, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 14, 2023

NO. 12-22-00090-CR

FLOYD MARCELIUS BARNES,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2021-0538)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the
judgment of the court below be in all things affirmed, and that this decision be certified to the
court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.