Opinion issued April 8, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00622-CR
WILLIE EUGENE ROLLINS III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1113805
MEMORANDUM OPINION
A jury convicted appellant, Willie Eugene Rollins III, of aggravated sexual assault of a child and assessed punishment at thirty-three years’ imprisonment. In one issue, appellant argues that he received ineffective assistance of counsel because his trial counsel failed to object (1) to improper outcry testimony and (2) to improper bolstering of a witness.
We affirm.
BACKGROUND
In July 2006, the complainant, K.W., a twelve-year-old female, traveled from Austin, Texas to Houston, Texas to visit two family friends, known to her as “aunts,” Mishay Vinson and Roshandra Boudreaux. During the visit, the complainant and appellant traveled to Louisiana to visit Linda Ware, appellant’s mother and the complainant’s godmother. Although they intended for the trip to last approximately two weeks, they returned to Houston after four days because appellant wanted to see his girlfriend. They arrived in Houston around 2:00 a.m. on an unspecified Friday late in July, and they called Boudreaux upon their arrival. Boudreaux told the complainant to stay with appellant that night because it was late, but she informed the complainant that she would pick her up after work the following day. Alona Hudson, a friend of appellant, drove the complainant and appellant to the apartment where he and his girlfriend lived. That night the complainant slept on the couch while appellant and his girlfriend slept in the apartment’s single bedroom.
The next day, appellant took his girlfriend to work, picked up food from his sister’s nearby apartment, and returned to the apartment that he shared with his girlfriend. Following his return, appellant instructed the complainant to take a shower. The complainant did so, but she neglected to take a towel or clean clothing with her, and she asked appellant to bring them to her. When appellant brought the items to her, he looked at her in a way that made her feel “scared” and “weird.”
Approximately twenty minutes after the complainant finished her shower, appellant called her into the bedroom and asked her about her age and whether she had ever had sex or wanted to have sex. Then appellant told her to take her pants off and lie down on the bed; the complainant complied. Appellant then penetrated complainant’s vagina with his penis. Appellant instructed the complainant not to tell anyone about the assault.
On August 1, 2006, the complainant, while still in Houston and staying with her aunt, Boudreaux, experienced burning while urinating and discovered blood in her urine. She told Boudreaux about the bleeding, and Boudreaux called the complainant’s mother, Monique Williams, and told her.
A week later, on August 6, 2006, the complainant, still experiencing discomfort, returned to Austin. When she arrived in Austin, her mother took her to Brackenridge Hospital.
At the hospital, the complainant was diagnosed with a bladder infection. She was asked by the nurses whether she had ever had sex or whether anyone had improperly touched her. An intake nurse, Racquel Long, explained what it meant to be sexually active, and, following the explanation, the complainant told Long she had had sex without her consent. Long informed the complainant’s mother of the assault and referred the complainant to Carmen Bell, a social worker at the hospital who was on call for the emergency room.
Bell spoke with the complainant and completed a “Social Service Risk of Abuse Assessment,” which included Long’s description of the assault. Upon confirming that the complainant had been sexually assaulted, Bell contacted the police departments in Austin and Houston, and an unspecified person contacted Child Protective Services (CPS). The complainant provided statements to both CPS and the Houston Police Department. The complainant also identified appellant from a photo spread as her assailant. A Harris County grand jury indicted appellant for aggravated sexual assault of a child.
At trial, the complainant described the assault. She testified that the complainant put his penis in her vagina, that he lay on top of her “and kept going,” he ejaculated on her stomach, he cleaned her up with a towel, and he indicated to her he wanted her to perform oral sex on him, but she refused. Then she testified that she did not tell anyone of the assault until she told the nurse at the hospital, but that she saw appellant one more time before returning to Austin. After the complainant testified, her mother, Williams, testified about the complainant’s trip to Houston and Louisiana, her demeanor throughout the trip, and her description of her medical problems. Williams testified that she first learned of the assault at the hospital, and stated that she did not have any reason to doubt the veracity of her daughter’s testimony.
Bell testified as the State’s outcry witness; Long did not testify. Bell testified that K.W. had come in for blood in her urine, and during the intake process it was discovered that she was sexually active, mandating an automatic referral to her as the social worker in the emergency room. The referral stated that K.W. “was not sexually active but it had happened against her will.” She interviewed K.W. first, and then interviewed K.W. and her mother together.
Bell testified that K.W. “was very sad and she was tearful and crying.” She described this behavior as typical of sexual assault victims. She verified that her notes stated “that the patient admitted to vaginal intercourse after receiving explanation of what being sexually active meant” and that that explanation was made by the initial nurse before referral to her. Bell testified that K.W. told her she was not a willing participant, but she “laid down on the bed” and “her God brother asked her to come into his room and asked her to take off her pants and she said that he only did it a few times.”
Bell testified that, as a matter of hospital procedure, she only asks a child victim of sexual assault for enough details to make a proper referral. Once she “found out that she had in fact had intercourse and it had been by someone that was an adult, which would make it sexual assault of a child,” she “made the appropriate referral to the police department and the jurisdiction in which the assault happened.” Bell testified that K.W. was 12 years old at the time of the assault. She further testified that, as an intermediary, she did not try to get the entire story; rather, to “keep a testimony of the child as intact as possible,” she deferred to the appropriate agency doing the forensic interview. Appellant’s trial counsel requested that the statement that the complainant made to Bell be read into evidence. The attorneys agreed that it was already in evidence as part of the medical record.
The State then called Officer J. Barnes, a member of the Houston Police Department who investigates juvenile sex crimes. Officer Barnes testified that the Austin Police Department conducted the complainant’s forensic interview, at his request, and obtained a statement from the complainant. He further testified that he provided the Austin Police Department with a photo spread, which included a picture of appellant, and that the complainant identified appellant in the photo spread.
As its final witness, the State called Dr. Lawrence Thompson, a clinical psychologist with expertise in child sexual abuse, who testified about the reasons why a child might not make an outcry earlier and might have inconsistences in her renditions of a sexual assault.
During the cross examination of the State’s witnesses, appellant’s trial counsel showed that the complainant’s testimony and the statements she had provided to the nurses at the hospital, to the police, and to CPS contained differences. Officer Barnes testified that the police report included a statement that the complainant performed oral sex on appellant and that she told her mother of the assault while she was still in Houston. Officer Barnes also testified that a report produced by CPS indicated that the complainant reported she did not see appellant after the assault. During his cross-examination of Officer Barnes, appellant’s trial counsel contrasted the contents of Bell’s report with the contents of the police report and appellant’s testimony and emphasized the differences in the complainant’s descriptions of the assault. He also contrasted the complainant’s testimony that she saw the appellant after the assault with the CPS report in which the complainant said she had not seen appellant since the assault.
The defense called four witnesses. The first witness for the defense was Tamara Shaw, appellant’s girlfriend. Shaw testified that she did not leave appellant and the complainant alone in the apartment, but she also testified that she was at work on the day of the assault. The defense then called Alona Hudson, who testified that she picked appellant and the complainant up from the bus station and that she was with them on the day of the assault. Next, the defense called Kiesha Rollins, appellant’s sister, who testified that appellant left the complainant with her on the day of the assault. Then the defense called the complainant and questioned her about the inconsistencies in her testimony, and specifically whether she believed that the statement she gave at the hospital was complete. The complainant testified that her statement at the hospital was incomplete because she had not known how to convey all of the details of her assault at that time. The defense recalled appellant’s sister, who testified about Linda Ware’s visit to Houston after the assault.
The jury found appellant guilty of aggravated sexual assault, found his enhancement paragraphs true, and assessed his punishment at thirty-three years’ imprisonment. Appellant did not file a motion for a new trial.
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant’s sole issue on appeal is that he received ineffective assistance of counsel. He contends that his counsel was ineffective because he failed to object to Carmen Bell as an improper outcry witness and he neglected to object to testimony concerning the complainant’s credibility by her mother. Appellant argues that his trial counsel’s deficient performance undermines confidence in the outcome of the case.
A. Standard of Review
We evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington. 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984); Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App. 1999). First, the appellant must show that his trial counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, the appellant must demonstrate that his trial counsel’s performance deviated from prevailing professional norms. Id. at 688, 104 S. Ct. at 2065; McFarland v. State, 845 S.W.2d 824, 842–43 (Tex. Crim. App. 1992). Second, the appellant must show prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To show prejudice, the appellant must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The appellant bears the burden of proving by a preponderance of the evidence that his trial counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When an appellant fails to satisfy one prong of the Strickland test, the reviewing court need not consider the other prong. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that his conduct was reasonable and professional. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. Rylander, 101 S.W.3d at 110–11. Ineffective assistance of counsel claims must be firmly founded in the record. Bone, 77 S.W.3d at 835. That record must itself affirmatively demonstrate the alleged ineffectiveness. Id. at 833. A defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Id. at 836. Generally, to show ineffective assistance of counsel for failure to object during trial, the appellant must show that the trial court would have committed error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (citing Vaughn v. State, 931 S.W.2d 564, 566) (Tex. Crim. App. 1996)).
B. Failure to Object to Improper Outcry Witness
Appellant first argues that his trial counsel’s failure to object to Bell as an improper outcry witness, his failure to request a hearing on the admissibility of the outcry testimony, and his failure to object to the State’s late filing of its notice of intent to use outcry testimony constituted ineffective assistance of counsel.
The version of article 38.072, section 2 of the Texas Code of Criminal Procedure that was in effect at the time of this case contains four requirements that must be met before an outcry statement is admissible. Section 2(a) states:
Sec. 2. (a) This article applies only to statements that describe the alleged offense that:
(1) were made by the child against whom the offense was allegedly committed; and
(2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.
Act of Sept. 1, 1995, 74th Leg., R.S., ch. 76, § 14.25, 1995 Tex. Gen. Laws 834, 835 (amended 2009) (current version at Tex. Code Crim. Proc. art. 38.072 (Vernon Supp. 2009)). “The provisions of article 38.072 are mandatory and must be followed for the outcry statement to be admissible over a hearsay objection.” Moore v. State, 233 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Duncan v. State, 95 S.W.3d 669, 671 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)). If the trial court overrules a hearsay objection without complying with the provisions of article 38.072, then the trial court has committed error. Id. (citing Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990)).
Here, appellant complains of his counsel’s failure to object to improper outcry testimony in the context of his ineffective assistance of counsel claim. In this context, appellant has the burden to show that his counsel’s decision was “so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.” Bone, 77 S.W.3d at 833. Appellant has not made such a showing. Instead, appellant argues, “If this Court cannot conjure any conceivable strategy that would suggest counsel’s inaction, then it would be improper to simply indulge in the fantasy that counsel may yet have had one.” Such an argument inverts the Strickland analysis. Bone, 77 S.W.3d at 836. Thus, appellant provides no argument that his counsel’s decision making was without a strategic or tactical basis, as required by Strickland. Id. at 833. Although appellant has not made the required argument, the State contends that Bell’s testimony was admissible under two different hearsay exceptions and, therefore, appellant’s counsel may have elected not to object for that reason.
Had appellant shown that his counsel was deficient, he would have then been required to show that he suffered prejudice from this deficiency. Bone, 77 S.W.3d at 833. Appellant’s brief does not provide any indication that he suffered prejudice from his counsel’s failure to object. Therefore, we hold that appellant has not satisfied his burden to demonstrate that his trial counsel was ineffective in his failure to object to Bell’s testimony as improper outcry witness testimony. Because we concluded that appellant did not meet the requirements to show ineffective assistance of counsel, we need not determine whether Bell was a proper outcry witness.
C. Failure to Require Compliance with Article 38.082
Appellant also argues that his trial counsel was ineffective for failing to object to Bell as an outcry witness because he received inadequate notice that she was to be an outcry witness and because the trial court did not conduct a hearing to determine the reliability of Bell’s testimony, as required by article 38.072 of the Code of Criminal Procedure in effect at the time of this case.
Article 38.072, section 2(b) provides:
(b) A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) 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; and
(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.
Act of Sept. 1, 1995, 74th Leg., R.S., ch. 76, § 14.25, 1995 Tex. Gen. Laws 835 (amended 2009) (current version at Tex. Code Crim. Proc. art. 38.072 (Vernon Supp. 2009)). As stated above, the provisions of article 38.072 are mandatory and must be followed for the outcry statement to be admissible over a hearsay objection. Id. art. 38.072, § 2(b); Moore, 233 S.W.3d at 35; Zarco v. State, 210 S.W.3d 816, 833 (Tex. App.—Houston [14th Dist.] 2006, no pet.). However, even if the State fails to comply with the notice requirements in article 38.072, section 2, we will not reverse unless the failure caused harm. Zarco, 210 S.W.3d at 832.
The notice requirement is intended to prevent surprise at trial due to the outcry testimony. Id. Thus, in conducting a harm analysis upon a determination of error, we determine whether the failure caused the appellant to be actually surprised and whether the failure to meet the requirements prejudiced him. Id. In Zarco, the Fourteenth Court of Appeals determined that a proceeding begins when the jury is sworn and empaneled. Id. In that case, the court held that the State’s notice was insufficient because the appellant received the notice 13 days before the jury was sworn and empaneled. Id. (holding that providing notice 13 days before jury was sworn and 14 days before trial court received first evidence did not satisfy requirements in article 38.072, section 2(b). However, the court held that the error was harmless and overruled the appellant’s issue on appeal. Id.
Here, the State provided notice of its intent to use Bell as an outcry witness on July 1, 2008. The notice indicated that Bell and Long would be outcry witnesses, and it provided a summary of their proposed testimony. On July 14, 2008, 13 days later, rather than 14 as required by article 38.072, the trial court conducted voir dire and empaneled the jury. See Act of Sept. 1, 1995, 74th Leg., R.S., ch. 76, § 14.25, 1995 Tex. Gen. Laws 835 (amended 2009) (current version at Tex. Code Crim. Proc. art. 38.072 (Vernon Supp. 2009)). The record does not indicate that the trial court held a hearing on the outcry testimony. The trial on the merits began on July 15. Appellant’s trial counsel did not object to Bell’s testimony as an improper outcry witness testimony.
Because the mandatory provisions of article 38.072 were not followed, the trial court would have erred in overruling appellant’s objections to lack of notice of the outcry testimony and failure to hold a hearing on the reliability of the testimony. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b); Ex Parte White, 160 S.W.3d at 53; Zarco, 210 S.W.3d at 832. However, to establish ineffective assistance, appellant had to prove not only that it would have been error to overrule the objection but also that there was no plausible professional reason for this failure to object to the admission of Bell’s testimony on this ground and also that the outcome would have been different had his counsel objected. See Bone, 77 S.W.3d at 836.
The record demonstrates that trial counsel may have elected not to object to the one-day late notice or the failure to hold a hearing on the reliability of Bell’s testimony because he may reasonably have concluded that any such objection would be futile in that he could not show surprise or prejudice, nor could he show that Bell’s testimony was unreliable. Moreover, even if appellant’s counsel had objected to the admission of Bell’s outcry testimony for failure to comply with article 38.072, section 2(b)’s notice requirements, appellant has made no showing that he was actually surprised or prejudiced by the one-day late notification or by the failure to hold a hearing on the reliability of the testimony, so that the outcome of the proceeding would have been different but for counsel’s failure to object. Therefore, we conclude that appellant has not shown that his trial counsel was ineffective in failing to object to the late notice or to require a hearing on the reliability of Bell’s testimony as an outcry witness.
D. Failure to Object to Improper Opinion by Lay Witness on Credibility
Appellant also argues that his trial counsel was ineffective for failing to object to improper opinion by a lay witness, namely the complainant’s mother, regarding the complainant’s credibility. The portion of testimony appellant contends defense counsel should have objected to is as follows:
[State]:Is there any reason that you wouldn’t believe your daughter?
[Mother]:No, it’s no reason.
[State]:Did you believe that she was telling you the truth?
[Mother]:Yes.
[State]:Do you believe that she was telling you the truth today?
[Mother]:Yes, I do. Appellant argues that his trial counsel erred in failing to object to the complaint’s mother’s giving her opinion as to whether her daughter was being truthful about the allegations that she made against appellant. The State responds that the jury would expect a mother to so testify, which would make such an objection suspect, and that appellant’s counsel might reasonably have concluded error in admission of the testimony would likely have been held to be harmless, so that an objection was not necessary. See, e.g., Fisher v. State, 121 S.W.3d 38, 41 (Tex. App.—San Antonio 2003, pet. ref’d).
Generally, it is improper for a witness to offer direct opinion testimony as to the veracity of another witness. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Fisher, 121 S.W.3d at 40. Such testimony is inadmissible “because it does more than assist the trier of fact to understand the evidence or to determine a fact in issue; it decides an issue for the jury.” Fisher, 121 S.W.3d at 41 (internal quotations removed)(emphasis removed) (quoting Yount v. State, 872 S.W.3d 706, 709 (Tex. Crim. App. 1993). However, the admission of such testimony from a mother or legal guardian has been held harmless. See Fisher, 121 S.W.3d at 41 (holding any error in allowing aunt and legal guardian to testify to complainant’s character for truthfulness harmless and stating, “A jury would have expected Felicia Fisher, Alice’s aunt and legal guardian who raised Alice as her own child for six years prior to trial, to testify that Alice was truthful.”); Matter of G.M.P., 909 S.W.2d 198, 206 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (“A jury would expect a mother to testify that her son was truthful, and would likely view such testimony with natural skepticism.”)
Here, assuming without deciding that appellant’s trial counsel’s performance was deficient because of his failure to object to the complainant’s mother’s testimony regarding the complainant’s truthfulness, appellant has not made an argument showing that, but for his trial counsel’s unprofessional conduct, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 268. The most appellant’s brief argues is that “it would also seem that a juror may well impute more intuitiveness to a close relative on an opinion like this, certainly more than they might to a stranger testifying as to whether he believed the complainant was telling the truth.” Therefore, we conclude that appellant has not shown that his trial counsel’s performance was deficient because of his failure to object to the statement as to the complainant’s truthfulness made by the complainant’s mother.
We overrule appellant’s sole issue.
CONCLUSION
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).