In The
Court of Appeals
For The
First District of Texas
____________________
NO. 01-98-01255-CR
____________________
MATTHEW JAMES LEACHMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 786224
MEMORANDUM OPINION ON REHEARING
We withdraw our Opinion of January 22, 2004 and issue the following one in its stead. Appellant’s motions for rehearing and rehearing en banc are denied.
A jury found appellant, Matthew James Leachman, guilty of aggravated sexual assault of a child, and the trial court assessed punishment at 40 years’ confinement. In seven points of error, appellant, representing himself pro se, contends that the trial court erred in overruling his (1) motion to dismiss for denial of counsel, (2) request to represent himself, pro se, (3) motion to suppress evidence, (4) request to admit testimony of the victim’s sexual behavior, (5) objection to hearsay testimony, (6) objections to the State’s final argument, and (7) request for a hearing on his motion for new trial.
We previously sustained appellant’s seventh issue and, by our order of July 26, 2001, abated this appeal for the trial court to conduct a hearing on appellant’s motion for new trial. A hearing was conducted, and a record of those proceedings and supplemental briefs from the parties are now before this Court. After the motion for new trial hearing, appellant raised two additional points of error asserting that (8) the trial court abused its discretion in denying his motion for new trial, and (9) he is being denied a fair appeal. We affirm.
Background
In 1995, the complainant, who, at the time, was a nine-year-old boy, met the 23-year-old appellant at the Memorial Crest Apartments where the complainant lived with his grandmother. Appellant, who was using the alias, Perry Hootman, and his roommate, Andrew Smith, also lived in the Memorial Crest Apartments. Appellant approached the complainant and a friend and asked if they wanted to go swimming. After swimming, the boys went to appellant’s apartment where he showed them his projection television and video games. In addition to the television and video games, appellant had computers and videos the boys could use. While the complainant’s friend played a video game, appellant took the complainant into his bedroom where he sexually assaulted the complainant for the first time, by showing the complainant appellant’s penis and having the complainant rub it.
The complainant returned to appellant’s apartment several times following the initial assault. Appellant allowed the complainant to play video games, watch movies, and use the computer. On multiple occasions, appellant sexually assaulted the complainant through the use of bribes and games. The sexual assaults consisted of oral sex, masturbation, contact between the complainant’s anus and appellant’s penis and vice versa.
After the complainant and his grandmother moved from the apartments, he told his mother and grandmother that appellant had “done things” to him, but provided no details. Neither woman followed up on the conversation.
In March of 1996, Federal Bureau of Investigation Special Agent Mark Young executed a search warrant on appellant’s apartment based on a federal investigation, which indicated that appellant and Andrew Smith were in possession of child pornography. Due to information gathered in the course of the investigation, Agent Young believed a child would be in the apartment at the time the warrant was executed. For assistance, he contacted Houston Police Officer James Chapman assigned to the Sex Crimes Unit of the Juvenile Division.
During the search, computers, computer software, and hundreds of photographs depicting young boys were seized. Because of his observations during execution of the search, the items seized and information gathered, Officer Chapman canvassed the apartment complex to find children who may have had contact with the appellant. This investigation led Officer Chapman to the complainant. Officer Chapman contacted the complainant’s grandmother and arranged to meet the complainant at their apartment. When Officer Chapman arrived, the complainant was frightened and hiding in the closet. After talking to the complainant through the door, Officer Chapman eventually convinced the complainant to come out and speak with him. In a videotaped statement, the complainant later detailed the sexual abuse committed by appellant.
Denial of Counsel
In point of error one, appellant contends that the trial court erred in denying his motion to dismiss because he was denied a fair trial when the trial court failed to appoint counsel when appellant was first charged in Texas.
On March 13, 1996, the FBI arrested appellant on a federal indictment and transferred him to custody in the Western District of Pennsylvania. On April 15, 1996, the State of Texas filed seven charges against appellant, including, in Harris County, the aggravated sexual assault of the complainant. No action was taken on appellant’s Harris County case until he returned from Pennsylvania.
From Pennsylvania, appellant sent the Harris County district court coordinator two letters requesting that he be appointed counsel. The letters were accompanied by affidavits of indigency. When no counsel was appointed, appellant moved for dismissal with prejudice. The trial court denied appellant’s motion on December 23, 1997. Appellant argues that his case should be reversed and dismissed because the trial court did not appoint counsel.
Both the United States and Texas Constitutions guarantee the accused the right to assistance of counsel in all criminal prosecutions. U.S. Const., amend. VI; Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. arts. 1.05, 1.051 (Vernon 1977 and Supp. 2003). This right attaches only at or after the initiation of adversary proceedings against the defendant. United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 2297 (1984). However, not every event following the inception of adversary judicial proceedings is a “critical stage” invoking the right to counsel. Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994).
A pre-trial proceeding is only “critical” if the accused requires aid in coping with legal problems or assistance in meeting his adversary. United States v. Ash, 413 U.S. 300, 313, 93 S. Ct. 2568, 2575 (1973); Green, 872 S.W.2d 717 at 720. Because there were no proceedings from the time of appellant’s indictment until appellant was brought to Harris County, appellant was not deprived of counsel during a critical stage of adversarial judicial proceedings. See id.
We overrule point of error one.
Request to Proceed Pro Se
In point of error two, appellant argues that the trial court erred in denying his request to represent himself, pro se.
While represented by counsel, appellant filed a pro se motion entitled, “Defendant’s Ex Parte Motion to Vacate The Appointment of Counsel and To Recognize the Defendant as Self-Represented” on the previous indictments in the case. The State contends that “within the motion is also what in essence is a request for hybrid representation.” We disagree with this characterization. In his motion, appellant sought permission from the trial court to proceed pro se—nothing less.
The clerk’s record does not contain an order from the trial court denying appellant’s request to proceed pro se. The abatement record, however, reflects that, during the motion for new trial hearing, appellant questioned his trial counsel, Brian Coyne, and asked if he remembered when the trial court denied appellant’s motion to vacate appointment of counsel. Coyne did not recall the trial court’s ruling, and appellant produced correspondence from the district clerk indicating that, on June 17, 1997, the trial court denied appellant’s motion to vacate appointment of counsel. The district clerk’s letter was attached as an exhibit to the motion for new trial hearing.
Appellant relies on the district clerk’s letter as proof that the motion was presented to and denied by the trial court. The clerk’s letter, however, is not a part of the clerk’s record filed in this appeal. It is not dated and or authenticated in any way. As such, it does not constitute evidence of an appealable order. The record also does not contain a docket entry by the trial court reflecting a ruling on the motion. See Flores v. State, 888 S.W.2d 193, 195 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (holding that a signed docket entry evidences trial court’s ruling on motion to suppress evidence). Because the record does not support appellant’s contention that his motion to represent himself was presented to the trial court and was denied, we hold that appellant has not properly preserved this point of error. See Tex. R. App. P. 33.1.
We overrule point of error two.
Motion to Suppress Evidence
In point of error three, appellant contends that the trial court erred in overruling his motion to suppress evidence seized from his apartment. He contends that the seizure was illegal because (1) the warrant was based on a false allegation made deliberately or with reckless disregard for the truth, and no probable cause existed absent the false allegation; (2) many items were seized that were not within the warrant’s scope; (3) the warrant was impermissibly vague; and (4) the warrant was overbroad.
In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court may accept or reject all or any part of a witness’s testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980). In reviewing the trial court’s ruling on a motion to suppress evidence, an appellate court does not engage in its own factual review and determines only whether the record supports the trial court’s fact findings. Romero, 800 S.W.2d at 543. If the trial court’s fact findings are supported by the record, an appellate court may not disturb the findings unless the trial court abused its discretion. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). On appellate review, we address only the question of whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543.
False Allegation
Appellant argues that there were two false statements found within Special Agent Young’s affidavit in support of the search warrant, and that the statements were made knowingly or with reckless disregard for the truth.
The first statement was that “Leachman in a 1993 arrest in Springfield, Missouri for 3rd Degree Assault involving sexual crimes against children, advised law enforcement that he is a freelance photographer, who specializes in photography of children.” Appellant argues that this statement is grossly misleading given the fact that the charges were dropped due to legal insufficiency of the evidence and that this was, in fact, an assault charge, equivalent to a class C misdemeanor in Texas. Appellant also contends that Special Agent Young’s characterization of his arrest for “sexual crimes” was inaccurate because they were neither sexual (because they were simple assault charges), nor crimes (because they were dropped). The record does not support appellant’s complaint. Young’s affidavit does not reflect whether the offense was a felony or misdemeanor, and there is no evidence, other than appellant’s complaint, that the information obtained from the law enforcement officers in Missouri was incorrect.
The second contested statement in Young’s affidavit was that “Leachman was determined to have used computer accounts of Andrew Smith, described above, to transmit the mentioned pornographic material.” Special Agent Young testified that this statement was incorrect, but that even after redacting the incorrect statement, the warrant “still stood.” Appellant contends that this admission is a prima facie showing that Special Agent Young disregarded the truth. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978). The federal judge held that the affidavit still supplied sufficient probable cause to support the warrant. We agree. We hold that, after the admittedly incorrect statement is removed from the warrant, the remaining content is sufficient to establish probable cause. Id. at 156, 98 S. Ct. at 2676.
Scope of Warrant
More than 1000 photographs were seized from appellant’s apartment. Appellant contends that the seizure of any of the photographs exceeded the scope of the warrant.
Among other things, the federal search warrant authorized the seizure of photographs. The paragraphs relating to the recovery of photographs were as follows:
Any and all tapes, cassettes, cartridges, streaming tape, commercial software and hardware, computer disks, disk drives, monitors, computer printers, modems, tape drivers, disk application programs, data disks, system disk operating systems, magnetic media floppy disks, tape systems and hard drive and other computer related operation equipment, in addition to computer photographs, graphic interchange formats and/or photographs, slides or other visual depictions of such graphic interchange format equipment which may be, or are used to visually depict child pornography, child erotica, information pertaining to the sexual interest in child pornography, sexual activity with children or the distribution, possession or receipt of child pornography, child erotica or information pertaining to an interest in child pornography or child erotica.
. . . .
Any originals and all copies and all negatives of visual depictions of minors engaged in sexually explicit conduct as defined in Title 18, United States Code, Section 2256.
. . . .
Any and all materials and photographs depicting sexual conduct, whether between adults or between adults and minors.
The photographs to be seized fell within four categories: (1) computer photographs of graphic interchange format equipment; (2) child erotica; (3) all originals, copies, and negatives of visual depictions of minors engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256; and (4) any and all materials and photographs depicting sexual conduct, whether between adults or between adults and minors.
Of the more than 1000 photographs seized, Special Agent Young admitted that, with the possible exception of five or eight, none of the photographs seized conformed to the seizure list. None of the photographs seized from appellant’s apartment depicted minors engaged in sexually explicit conduct, as defined in Title 18, United States Code section 2256(2). None of the photographs seized depicted sexual conduct, whether between adults or between adults and minors, and none of the photographs seized were taken of computer equipment used for enabling data to be processed into a visual image. The majority of the pictures were of clothed young boys with an emphasis on their bare feet. Special Agent Young conceded that the majority of the seized photographs were not supported by the warrant.
Special Agent Young submitted a four-and-one-half-page, single-spaced, typewritten affidavit along with his search warrant request. In the affidavit, he outlined his experience, which included that he had been with the FBI for 26 years and he was the field coordinator for the National Center for the Analysis of Violent Crimes, which among other things, researches the sexual exploitation of children.
Young’s affidavit explained that, on March 4, 1995, graphic files containing child pornography were discovered on the mainframe computer at the University of Pittsburgh. An investigation revealed appellant was responsible for the pornographic images, as well as electronic mail related to child pornography. In a 1993 arrest, appellant admitted to photographing children and asking them to remove their shoes and socks so he could lick their feet. Appellant also admitted to paying children to remove all their clothing. During the interview after the 1993 arrest, appellant
admitted approaching several young boys at various times since his 18th birthday and participating in group masturbation with them. [Appellant] then advised he always keeps thousands of photographs and a camera with him.
Special Agent Young’s affidavit further explained that the managers of appellant’s apartment complex identified appellant from his 1993 arrest photo, but they knew him as “Perry Hootman.” The managers told Young that numerous young males between the ages of 10 and 12 had visited appellant’s apartment on a daily basis, and that the children of several families told one of the managers that appellant had attempted to photograph nude, young males.
At trial, Officer Chapman testified that he worked in the juvenile division’s child sexual abuse unit at the Houston Police Department, and he specialized in Preferential Child Molesters, who are more commonly known as “pedophiles.” He had worked on more than 1000 sexual abuse cases, and he was present when the warrant was executed on appellant’s apartment.
Officer Chapman testified that the seized photographs in this case were “child erotica” in the context of this case. More than 95 percent of the photos were of male children, and many of the photographs depicted bare feet. Officer Chapman also testified that child erotica was something that might “seem innocent” or appear “perfectly normal” to some people, but not to others. While taking or possessing the pictures was not criminal, in this case, it was part of the arousal pattern satisfying appellant’s foot fetish. Officer Chapman explained that playing “truth or dare,” offering children money to do things, offering to let a child play on your computer, chatting on the Internet with children, and tickling children’s feet are not in and of themselves illegal, but combined with the complainant’s statement and Officer Chapman’s experience with pedophiles, Officer Chapman considered these things to be “signature” items and actions of a child predator.
Given Officer Chapman’s expertise in the sexual exploitation of children, we hold that it was reasonable for the officers to consider the more than 1000 photographs to be child erotica authorized by the warrant to be seized. See Lalande, 676 S.W.2d at 116.
Vague/Overbroad
Appellant contends that the warrant was overbroad and vague. He did not raise these grounds in the motion to suppress evidence. Grounds not raised in the motion to suppress evidence and ruled on by the trial court cannot be raised for the first time on appeal. Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990).
We overrule point of error three.
Admission/Exclusion of Evidence
In points of error four and five, appellant argues that the trial court erred in refusing to admit testimony regarding the complainant’s prior sexual behavior and admitting hearsay when it admitted the outcry statements by the complainant’s grandmother and Officer Chapman.
We review a trial court’s decision to admit or exclude evidence using an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990); Nguyen v. State, 21 S.W.3d 609, 612 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
The Complainant’s Prior Sexual Behavior
The complainant testified that appellant had asked the complainant if he knew about sex, and the complainant told him, “yes, but I don’t like it.” Appellant asked the trial court if he could question the complainant, outside the presence of the jury, regarding the complainant’s prior sexual encounters to determine how he knew he did not like sex. During voir dire, the complainant testified that he had never had any sexual contact before his encounter with appellant. After more questioning, the complainant admitted that he had had sexual contact with a seven-year-old boy and a 17-year-old boy.
Appellant contends that the trial court erred in excluding evidence that the complainant had had prior sexual contact with a seven-year-old and evidence that the complainant had lied about denying another adult sexually assaulted him. Appellant contends that this evidence was relevant to the complainant’s credibility because he denied, under oath, having had prior sexual contact with anyone before his encounter with appellant.
Rule of Evidence 412(b) states that, in a prosecution for sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is not admissible, unless it is evidence that relates to the motive or bias of the alleged victim and its probative value outweighs the danger of unfair prejudice. Tex. R. Evid. 412(b)(2)(C) and 412(b)(3).
The complainant’s testimony about a prior sexual act with a seven-year-old and his allegations of sexual assault by a 17-year-old provided no evidence of the complainant’s motive or bias. Accordingly, we hold that the trial court did not abuse its discretion in excluding evidence of the complainant’s prior sexual behavior.
We overrule point of error four.
Hearsay
In point of error five, appellant contends that the trial court erred in admitting hearsay when it allowed the outcry statements by the complainant’s grandmother and Officer Chapman because no hearing was conducted to determine the reliability of the statements.
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is ordinarily inadmissible unless an exception applies. Tex. R. Evid. 802. The State asserts the complainant’s grandmother’s and Officer Chapman’s statements were admissible as exceptions to the hearsay rule because their statements were evidence of the complainant’s outcry. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). Among other requirements, the statute provides that the statement is admissible if “the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement.” Tex. Code Crim. Proc. Ann. art. 38.072 § 2(b)(2) (Vernon Supp. 2003). Appellant’s only complaint on appeal is that, because no hearing was conducted to determine the reliability of the statements, his case should be reversed. The State concedes that it was error not to conduct a hearing, but argues that the error was harmless.
The Court of Criminal Appeals has instructed appellate courts that, when the State fails to comply with article 38.072, they must engage in a harm analysis to “quantify the effect of the error.” Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992); Gay v. State, 981 S.W.2d 864, 867 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). We will not reverse unless we conclude that the error affected a substantial right of the appellant. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. Kotteakos v. U.S., 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
Appellant contends that the only evidence of aggravated sexual assault was the complainant’s statements. He argues that the repetition of these statements through the complainant’s grandmother and Officer Chapman “bolstered [the complainant’s] testimony and falsely enhanced his credibility, which was the ultimate issue at trial.”
The complainant’s grandmother testified that she was driving with her daughter, the complainant’s mother, and the complainant when he announced that he had something to tell them, but he was afraid they would be mad at him. When asked what the complainant told them, appellant objected as to hearsay. The State responded that it was an outcry statement, and the trial court overruled the objection. The grandmother testified that the complainant told her that appellant “did stuff” to him.
The complained-of testimony actually added very little to the evidence before the jury. Further, given the lack of detail, the statement failed to do more than reiterate what the jury already knew—appellant spent some time with the complainant. Thus, the testimony does not corroborate the complainant’s account of the “molestation.” It merely corroborated the complainant’s statement that he had told his grandmother and mother about appellant’s assault. The complainant did not provide his grandmother or mother with any details of the assault.
We hold that the record does not support a finding that appellant was harmed by the trial court’s failure to conduct a hearing to determine the grandmother’s reliability before allowing her to testify.
Officer Chapman was also questioned about statements the complainant made to him, and the trial court overruled appellant’s objections to the “hearsay” testimony.
Before eliciting testimony from Officer Chapman concerning the complainant’s statements, the State used Officer Chapman as an expert regarding sexual predators, erotica, and deviant behavior. In part, Officer Chapman explained to the jury what a “fetish” was and what types of pornography, erotica, and behavior indicated that a person had a fetish. It was suspected that appellant had a foot fetish. The following testimony was elicited in support of this theory:
State:And did [the complainant] mention to you in the course of your contact with him an experience that he had with the Defendant concerning his feet?
Defense: Your honor, I object to that. That calls for an answer based on hearsay.
. . . .
Court: Objection’s overruled.
Officer: He did.
We hold that the record does not support a finding that the appellant was harmed by the trial court’s failure to conduct a hearing to determine Officer Chapman’s reliability before allowing him to testify.
Accordingly, we overrule point of error five.
Jury Argument
In point of error six, appellant argues that the trial court erred in overruling appellant’s objection to the State’s final argument.
Proper jury argument falls into four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responsive arguments; and (4) pleas for law enforcement. McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999); Bias v. State, 937 S.W.2d 141, 143 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Appellate courts should not hesitate to reverse when it appears the State has departed from one of these areas in argument and has engaged in conduct calculated to deny the accused a fair and impartial trial. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996). The State must confine its jury argument concerning the defendant’s guilt to statements based upon properly admitted evidence. Campbell v. State, 610 S.W.2d 754, 757 (Tex. Crim. App. 1980). The State may not strike at a defendant over the shoulders of his counsel or impugn the integrity of defense counsel. Fuentes v. State, 664 S.W.2d 333, 335 (Tex. Crim. App. 1984).
We apply the three factors established by the Court of Criminal Appeals for analyzing harm from improper jury argument in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). The factors are: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Id. A prosecutor may strike hard blows, but not foul ones. Washington v. State, 16 S.W.3d 70, 73 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
Appellant refers to two places in the State’s closing where he contends the prosecutor “attacks” defense counsel. The first of the two references was made without objection at trial; therefore, error was not preserved. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
The second allegedly objectionable portion of the State’s closing was when the prosecutor stated,
State: Now, on Cross-Examination, when Defense Counsel was beating on [the complainant], and beating on him, and beating on him, yeah, he might have gotten a little confused. But, ladies and gentlemen, you heard him on Direct testimony when he didn’t have a lawyer who was beating on him, and screaming at him, and yelling at him, and arguing with him.
Appellant’s counsel: Judge, I’m gonna object to the characterization. She’s attacking the Defendant over the shoulder of Counsel, and I would ask that you instruct the jury to disregard that because it’s certainly not true.
The trial court overruled appellant’s objection.
Appellant relies on Gomez v. State, 704 S.W.2d 770 (Tex. Crim. App. 1985), for the proposition that final arguments that constitute uninvited and unsubstantiated accusations of improper conduct directed at a defendant’s attorney can be reversible error even with an instruction to disregard. Id. at 771. In Gomez, however, the prosecutor accused the defense attorney of “manufacturing evidence.” Id. Appellant also directs us to Sunday v. State, 745 S.W.2d 436 (Tex. App.—Beaumont 1988, pet. ref’d), which held that an argument attacking defense counsel in an effort to inflame the minds of the jury to the accused’s prejudice cannot be condoned. Id. at 440. In Sunday, the prosecutor stated that the defendant’s testimony changed after he hired his attorney. Id. The cases cited by appellant to support his argument involve personal attacks by the prosecutor that overtly call into question the ethics of the defense counsel and the credibility of the defense. See Sawyer v. State, 877 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). These cases are easily distinguished from the case before us.
The prosecutor was not attacking counsel. She did not accuse trial counsel of lying, manufacturing evidence, or engaging in improper conduct. The prosecutor’s comments were not calculated to convey to the jury the impression that appellant’s counsel acted in bad faith or insincerity. See Fuentes v. State, 664 S.W.2d 333, 335 (Tex. Crim. App. 1984). While we do not condone or encourage the prosecutor’s word choice, the comments were an attempt to rehabilitate the complainant’s credibility after appellant put it in issue during his closing arguments.
We overrule point of error six.
Motion for New Trial
In point of error eight, appellant argues that, after the appeal was abated for a hearing on appellant’s motion for new trial, the trial court abused its discretion in denying appellant’s motion for new trial.
We review a trial court’s denial of a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). The trial court is given great deference, and may be overruled only if its decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The credibility of witnesses is primarily a determination for the trial court. Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist] 1997, pet. ref’d). Accordingly, the trial judge may accept or reject any or all of the witnesses’ testimony. Id. The trial judge is not required to believe a defendant’s testimony or evidence simply because it is uncontroverted. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d.). We afford almost total deference to a trial court’s determination of historical facts that the record supports, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The defendant generally has the burden of proof on a motion for new trial. Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995).
To show ineffective assistance of counsel, an appellant must demonstrate that (1) counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984). This standard of proof of ineffective assistance applies to the punishment phase as well as to the trial stage of criminal proceedings. Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). It is an appellant’s burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. The appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
We must look to the “totality of the representation and the particular circumstances of each case” in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. In so doing, we recognize the strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. As the Supreme Court observed:
It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To defeat the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
Here, both appellant and appellant’s lawyer, Brian Coyne, testified during the motion for new trial. There were also numerous exhibits admitted, including a three-page affidavit from Coyne in which he explained his actions.
Appellant contended that his trial counsel was ineffective because he was “unprepared for trial, failed to engage in meaningful plea bargaining, failed to present relevant evidence, failed to object to inadmissible evidence, opened the door to highly prejudicial evidence, and allowed an expert witness to testify that [the complainant] was credible.”
Assuming, without deciding, that appellant’s trial counsel was ineffective, appellant has failed to address the second prong of Strickland. He has neglected to show that, but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-88.
We overrule point of error eight.
Fair Appeal
In point of error nine, appellant contends he is being denied a fair appeal because he properly designated items for the record that are not included. Specifically, appellant contends that we cannot evaluate harm unless we have had an opportunity to view the photographs that were admitted at trial, the PSI report, and two affidavits generated by appellant.
The State responded that “the admitted photos of young boys, although they may not be pornography, should not be copied and made part of the record sent to appellant in the penitentiary.” Regardless, the complained-of omissions from the record were not necessary for us to hold that the trial court did not abuse its discretion when it found that appellant did not, by a preponderance of the evidence, prove that his trial counsel was ineffective and, but for the ineffectiveness, the outcome would have been different. See id.
We overrule appellant’s point of error nine.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Jennings, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).