NO. 12-06-00135-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DANNY LANE DILLON, § APPEAL FROM THE 145TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Danny Lane Dillon appeals from his convictions for aggravated sexual assault of a child and indecency with a child. In eight issues, he argues that he received ineffective assistance of counsel and that the trial court erred in admitting statements made by the complaining witness. We affirm.
Background
Because Appellant does not contest the sufficiency of the evidence, we will briefly state the facts that support the conviction. At one time Appellant was married to the complaining witness’s grandmother. At the time of trial, the complaining witness was a twenty-one year old enlisted member of the U.S. Army. She testified that Appellant sexually assaulted her when she was seven years old. She did not report this to law enforcement until 2000, when she was fifteen. The trial court admitted, over Appellant’s objection, the testimony of several witnesses in whom the complaining witness confided before making a report to law enforcement. Appellant gave a statement to the police. He denied that he had sexual intercourse with the complaining witness. He did tell the police that on several occasions she “groped” him, that he became “excited” on several of those occasions, and that he might have touched the child’s vagina on one occasion.
Appellant was found guilty by a jury. A separate punishment hearing was held. Appellant testified at the punishment hearing but did not present any other evidence. The jury assessed punishment at sixty years of imprisonment. Following the trial, Appellant filed a motion for a new trial. A hearing was held on that motion. Among the claims advanced at the hearing was the claim that Appellant’s counsel failed to provide effective assistance of counsel because he did not locate or interview character witnesses. The motion for new trial was overruled by operation of law. This appeal followed.
Ineffective Assistance of Counsel
In his first and second issues, Appellant argues that the trial court should have granted his motion for new trial. Specifically, he argues that his counsel rendered ineffective assistance because counsel’s pretrial investigation did not include seeking out or developing character witnesses for use in the punishment phase of trial.
Applicable Law
Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires an appellant to demonstrate that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An ineffective assistance of counsel claim is not reviewed for isolated or incidental deviations from professional norms, but on the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
The second step requires the appellant to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
We begin with the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we presume counsel’s actions and decisions were reasonable and were motivated by sound trial strategy. See id. Appellant has the burden of proving ineffective assistance of counsel. See id.
Generally, we review a trial court’s denial of a motion for new trial under an abuse of discretion standard. See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). In the context of ineffective assistance of counsel, we review the ultimate question of prejudice de novo, but the trial court’s decision is afforded deference on any underlying factual determinations. Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). When no express factual findings are made by the trial court, we may “impute implicit factual findings that support the trial judge’s ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record.” Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim. App. 2004).
Facts
Appellant’s counsel’s investigation of this case did not include the development, cultivation, or gathering of character witnesses to offer mitigating evidence in the event that Appellant was convicted. This was not because counsel believed it was certain that Appellant would be acquitted. Rather, in light of a statement Appellant had given to the police, counsel believed that a conviction was more likely than not. Counsel, who is board certified in criminal law and testified he had handled a number of cases involving these issues, believed that character witnesses were unhelpful in cases of sexual assault of a young child. He testified at the motion for new trial hearing that he had used or considered using such witnesses in capital cases and that he thought they might be useful in cases such as a theft case. But he also said that “[i]n an aggravated sexual assault on a seven year old, I just don’t think they’re helpful.” Counsel was concerned that character witnesses would be asked how a convicted child rapist should be punished, and that the answer would not be helpful. Furthermore, the pretrial discovery revealed that another child had accused Appellant of sexually assaulting her. It appears that accuser was not available to testify, but counsel was concerned that character witnesses might be asked about that accusation. Counsel testified that he discussed his view of character witnesses with Appellant and that he discussed witnesses with Appellant in a general sense.1
At the motion for new trial hearing, Appellant presented affidavits from fourteen witnesses. One was his wife, who met him after charges had been filed, and at the time of trial had been married to him for less than a year. She also testified at the hearing. Other affidavits admitted at the hearing were from Appellant’s two stepchildren, one living in Alaska, his mother, his sister, his nephew, his daughter, his brother, his sister in law, two of his wife’s friends, two coworkers, and his son.
Analysis
In Strickland, as in this case, the trial lawyer did not investigate character witnesses, and the convicted defendant came forward with fourteen character witnesses in postconviction proceedings. Strickland, 466 U.S. at 675, 104 S. Ct. at 2058. The Court upheld the conviction, holding that trial counsel’s performance was not deficient and that “the decision not to seek more character or psychological evidence than was already in hand was . . . reasonable.” Id., 466 U.S. at 699, 104 S. Ct. at 2070–71.
The Court further held that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id., 466 U.S. at 690–91, 104 S. Ct. at 2066. In other words, trial counsel has a duty to make reasonable investigations or to make a reasonable decision that a particular investigation is unnecessary. A particular decision not to investigate must be “directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id., 466 U.S. at 692, 104 S. Ct. at 2066.
In Wiggins v. Smith, 539 U.S. 510, 524–25, 123 S. Ct. 2527, 2536–37, 156 L. Ed. 2d 471 (2003), the Court applied Strickland, but held that the representation was deficient. The Court concluded that counsel’s investigation was below professional standards, and further that the investigation performed should have alerted him that further investigation was warranted. Id., 539 U.S. at 525, 123 S. Ct. at 2537. In proceedings after trial, Wiggins showed that his attorney failed to discover the facts surrounding his upbringing, facts that the Supreme Court considered to be powerful mitigating evidence. Id., 539 U.S. at 534, 123 S. Ct. at 2542.
These cases represent two bounds of the law regarding pretrial investigation of mitigation evidence. On one hand, a lawyer does not automatically render ineffective assistance of counsel if he does not investigate character witnesses, and counsel’s decision is to be assessed with a heavy measure of deference. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. On the other hand, a lawyer is ineffective if his investigation is below professional standards or he does not follow up on reasonably promising leads. Id., 539 U.S. at 525, 123 S. Ct. at 2537.
In this case, trial counsel did not think character witnesses could be effective in a child sexual assault case where the victim was seven years old at the time of the offense.2 Nothing Appellant developed after trial suggests that trial counsel was incorrect in this assessment, and we can say with reasonable certainty that this trial counsel would not have called any of these witnesses had he done the investigation undertaken by appellate counsel.3 More importantly, counsel did not ignore any promising leads. He discussed his strategy with Appellant, and he discussed witnesses, if not specifically character witnesses, with Appellant. Appellant has not shown any enticing avenues for investigation that were ignored. It is true that there would have been no harm in seeking out character witnesses prior to trial. But we do not think that Appellant’s right to counsel was abrogated because his attorney did not think character witnesses would be helpful and did not see anything in his pretrial investigation that caused him to think that there was promising mitigating evidence to be found. See Rompilla v. Beard, 545 U.S. 374, 389, 125 S. Ct. 2456, 2467, 162 L. Ed. 2d 360 (2005) (“Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there.”).
Exploring mitigation evidence is an important part of the defense in many criminal cases. There are cases, Rompilla and Wiggins for example, where counsel’s failure to follow up on promising leads during pretrial investigation is so outside of professional norms that the accused is entitled to a new trial despite the state’s having done nothing to impinge on the accused’s rights. But neither is the failure, or the declining, to investigate character witnesses always below professional norms. Appellant’s attorney decided to humanize his client, and present his personality and his story by calling him as a witness. He decided not to call character witnesses, and he made that decision early in the process, to the extent that he did not investigate character witnesses. Such a strategy is risky, and will result in the representation being found to be unprofessional when there are promising leads that should have been followed. Appellant has identified no such leads here. Appellant would be entitled to relief if the rule were that an attorney who fails to conduct pretrial investigation of character witnesses is ineffective in every case, every time. However, that is not the rule.
Appellant has directed us to two intermediate courts of appeals decisions considering similar issues. In Milburn v. State, 15 S.W.3d 267 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d), the defendant was convicted of possession of more than 400 grams of cocaine. Counsel did not investigate character witnesses. Id. at 269. At the hearing on the motion for new trial, the parties stipulated to the testimony of twenty friends or relatives who could have offered favorable character evidence. Id. Counsel testified that he did not explore this evidence because, in his experience, juries did not place much weight on the testimony of family members. Id. at 270. Characterizing this as a “decision to forego presentation of mitigating evidence,” the court found counsel’s representation to be inadequate because such a decision could be made reasonably only “after evaluating the available testimony and determining that it would not be helpful.” Id. In Shanklin v. State, 190 S.W.3d 154 (Tex. App.–Houston [1st Dist.] 2005), pet. dism’d, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007),4 the defendant killed another person in a bar fight. Counsel did not interview character witnesses and did not present any character evidence at the sentencing hearing. Id. at 164. Counsel gave no reason for this course of action and said that his failure to investigate and his decision not to call the witnesses did not result from “any reasoned trial strategy.” Id.
The Shanklin decision is easily distinguished from this case because counsel in Shanklin offered no reason for his failure to conduct an investigation. Furthermore, the court held that “defense counsel’s failure to investigate and call any punishment witnesses amounts to deficient performance,” without considering the reasons the investigation was curtailed. Id. at 165. The decision to call witnesses is related to the decision not to investigate, but Strickland and Wiggins stand for the proposition that a failure to investigate the mitigation case is not per se an abdication by counsel. Rather, as the court of criminal appeals did in Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005), the reviewing court must assess the reasons for counsel’s actions. In both Briggs and Shanklin there was no strategic reason for curtailing the investigation, and so the performance prong of the Strickland test was met.
We distinguish this case from Milburn for a related reason. Citing its previous decision in the same case, the court held that counsel’s failure to investigate character witnesses fell below the professional norms. Milburn, 15 S.W.3d at 269–70. In its previous decision, the court had determined that counsel’s lack of investigation was not entitled to deference as a strategic choice because counsel said he thought the witnesses, if called, would hurt his case, and so he did not investigate them. See Milburn v. State, 973 S.W.2d 337, 344 (Tex. App.–Houston 1998), rev’d, 3 S.W.3d 918 (Tex. Crim. App. 1999). The court did not explicitly consider whether the limitation on the investigation was reasonable, but determined that the decision not to call a witness was entitled to deference only if he conducted an investigation. Id. (“This decision is a prime example of a strategic choice made after a less than adequate investigation which, therefore, is not supported by informed professional judgment.”).
As we stated, the reasons for the limitation on the investigation must be assessed.5 In this case, an experienced attorney decided not to investigate character witnesses because he did not think they would be helpful and because his pretrial investigation did not cause, nor should it have caused, him to believe that further investigation of character witnesses would be helpful. This was a reasoned strategic decision. We owe deference to the strategic decisions of counsel. Appellant has not identified promising lines of inquiry ignored by counsel, and we conclude that counsel’s decision not to investigate character witnesses was reasonable and within the wide range of reasonable professional assistance.6
Even if the decision not to investigate was unreasonable, Appellant has not shown that he suffered prejudice. Appellant’s burden is high. It is not sufficient to show merely that the errors had some conceivable effect on the outcome of the proceeding. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067; Williams, 529 U.S. at 394, 120 S. Ct. at 1514; see also Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001). Virtually every act or omission of counsel would meet that test. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Rather, Appellant must show that counsel’s errors “actually had an adverse effect” on the case. See Roe v. Flores–Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985 (2000) (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).
Appellant has not shown that any failure to investigate had an adverse effect. In this case, Appellant had been found guilty of a sexual assault on his former wife’s seven year old granddaughter. During the investigation, Appellant told the police that the complaining witness sought to stimulate him and that he may have touched her vagina. Those facts presented a very different scenario from a drug offense or an imperfect self defense homicide, as were presented in Milburn and in Shanklin.
In contrast to Rompilla and Wiggins,7 we have little doubt that counsel would not have offered any of the character evidence had he known of it. The witnesses appear to be reasonable people who care about Appellant, but there was nothing especially compelling about their testimony. One of the witnesses said there was a lack of evidence to support the conviction, while another asked why Appellant was “prosecuted so severely and unjustly” as the child was “not kidnapped or raped.” Furthermore, Appellant’s own testimony at the punishment hearing illustrates the concern that his attorney had about calling character witnesses. The prosecutor asked Appellant the following: “But, you would agree with me that somebody who committed these offenses ought to be locked away for a long, long time?” Appellant answered, “Yes.”
Appellant’s wife was the only witness to testify in person at the hearing, and her testimony suffered from the same problems. She had met Appellant after the indictment was returned, and she testified that he was honorable, truthful, and kind, and that on one occasion he gave money to a person who came up to them in a night club and needed help. On cross examination she admitted that she had known him only four years and that an honorable man does not “rape a small child.” She stated that any sexual interaction between Appellant and the child was limited to the child “experimenting” with him, and that she thought the jury would be persuaded of her belief in Appellant’s innocence by the fact that she allowed her children and grandchild to be around him. In short, while her testimony did bring out some characteristics that were not otherwise highlighted, her opinion was based on a version of reality that the jury had rejected when it found Appellant guilty. Finally, the matter of the extraneous offenses is relevant to the harm analysis. The character witnesses could have been asked about the other allegations, something that counsel was able to minimize during the trial.
This case is not like Wiggins where there was substantial mitigating evidence not offered and the jury was given the choice between life imprisonment and the death penalty, both very serious punishments. And this case is not like Milburn, where counsel’s reasons for not calling witnesses—he thought their testimony would be undermined by the fact that his client had previously been on probation—turned out not to be the case. Milburn, 973 S.W.2d at 344. Appellant essentially must prove that he would have received a lesser sentence if the character evidence he developed after trial had been offered. Appellant does not address this problem directly. Rather, he complains of other decisions made by counsel, including calling Appellant as a witness at all, asking questions about a minor criminal conviction that would have otherwise been unmentioned, and failing to prepare him for his testimony. Appellant also cites Milburn and Shanklin, in which courts of appeals reversed under similar circumstances.
Based upon our review of the record before us, we think it likely that any benefits to be gained from the use of character witnesses in this case would be offset if not supplanted by cross examination of those witnesses. Specifically, we have not seen any demonstration that the witnesses put forward by Appellant would have been able to give helpful answers to questions about what punishment they thought was appropriate for those who sexually assault children, or to questions about the other sexual assault allegation. In fact, on the record developed before the trial court, it appears that these witnesses may well have done harm to Appellant’s position. After considering all of the facts, we cannot conclude as a matter of law that Appellant has shown there is a reasonable probability of a different result if the witnesses had been called. We overrule Appellant’s first and second issues.
Out of Court Statements of the Complaining Witness
In his third, fourth, fifth, sixth, seventh, and eighth issues, Appellant argues that the trial court erred when it allowed witnesses to testify about the complaining witness’s statements to them relating to the charged offenses. Specifically, Appellant argues that the complaining witness’s statements were inadmissible hearsay and that his constitutional right to confrontation was violated by the introduction of the statements.
Facts
Three witnesses testified about statements made by the complaining witness. The first, a schoolmate of the complaining witness, testified that the complaining witness had told her that Appellant had molested her. Those conversations had been of a general nature, but in April 2000, the complaining witness told her specifically about the sexual assaults. The witness begged her to tell her mother. The complaining witness refused, but they agreed to tell the witness’s mother. The witness testified that she, and then the complaining witness, told the witness’s mother, and they all agreed to tell the complaining witness’s mother thereafter. She testified that the complaining witness then told her own mother about the sexual assaults.
The witness’s mother testified that the complaining witness told her about the assault and that she facilitated the conversation between the complaining witness and the complaining witness’s mother. Finally, the complaining witness’s mother testified that the complaining witness told her that Appellant had “sexually molested or abused” her. She testified that they reported the matter to the authorities after the complaining witness told her the story, and had the complaining witness examined by a doctor.
Appellant objected to this testimony on the grounds that it was hearsay and that the statements violated his right to confront witnesses. The State argued that it did not seek to introduce the statements for the truth of the matter asserted. Rather, it argued, the statements were offered to show the reasons for the actions taken by the witnesses after the statements were made. The trial court overruled the objections, although it did sustain an objection with respect to at least one question, and gave limiting instructions to the jury. The limiting instructions were slightly different each time they were given. The court’s final charge to the jury instructed the jury that the statements made by the complaining witness, “if any, were offered for the limited purpose of explaining why [the witnesses] acted in the manner that they did, and you may consider them for no other purpose.”
Confrontation Clause
Appellant’s third, fifth, and seventh issues relate to the Confrontation Clause of the United States Constitution. The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In this context, the Sixth Amendment confrontation guarantee means that testimonial evidence is inadmissible unless the defendant has had the opportunity to cross examine the witness. See Davis v. Washington, 547 U.S. 813, __, 126 S. Ct. 2266, 2273–74, 165 L. Ed. 2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177 (2004).
Appellant argues that his right to confront witnesses was violated because the three witnesses were permitted to testify as to what the complaining witness told each of them. The State argues that the Confrontation Clause was not violated because the statements were not hearsay. We will discuss whether these statements are hearsay or not in the following section, but the State’s argument does not properly apply Crawford. The essence of Crawford is that the Constitution requires cross examination, if requested by a defendant, as a prerequisite to the admission of testimonial statements by witnesses who do not appear at trial. Id., 541 U.S. at 68, 124 S. Ct. at 1374 (“Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”). The bar to be cleared is the Confrontation Clause. Whether a particular piece of evidence is admissible under the rules of evidence simply is not the appropriate inquiry—evidence that is forbidden by the Confrontation Clause is inadmissible, and the rules of evidence do not provide an alternate route of admissibility. See Shuffield v. State, 189 S.W.3d 782, 790–91 (Tex. Crim. App. 2006).
There are two problems with Appellant’s Confrontation Clause argument, however. First, the complaining witness, whose statements were admitted, testified at trial. It is not clear that her statements were testimonial. But even if they were, the Confrontation Clause and Crawford place no restraints “at all on the use of prior testimonial statements” when the “declarant appears for cross-examination at trial.” Id., 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9 (citing California v. Green, 399 U.S. 149, 162, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)). Second, the Court held in Crawford that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9. Either rationale is sufficient to allow these statements to clear the Confrontation Clause bar. Appellant had the opportunity to cross examine the speaker, and the statements were admitted for a reason other than the truth of the matter asserted. As such, Appellant’s right to confront witnesses was not violated.8 We overrule Appellant’s third, fifth, and seventh issues.
Hearsay
In his fourth, sixth, and eighth issues, Appellant argues that these statements were hearsay and that no hearsay exception applies. We review a trial court’s decision to admit evidence over a hearsay objection for an abuse of discretion. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We will not disturb the evidentiary ruling of the trial court unless it falls outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
The rules of evidence forbid hearsay statements. See Tex. R. Evid. 801(d). By rule, 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.”9 Id.
The statements here were offered not to prove the assertions within them, but to show what actions the witnesses took after receiving that information. This makes the statements nonhearsay, because they are not offered for the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081–82; 85 L. Ed. 2d 425 (1985) (jury instruction sufficient to protect against use of out of court statement for the truth of the matter asserted); Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (statement not hearsay if not offered to prove truth of the matter asserted); Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex. Crim. App. 1995).
Appellant cites Schaffer v. State, 777 S.W.2d 111, 114–15 (Tex. Crim. App. 1989), for the proposition that a police officer may not testify about historical aspects of the case, “replete with hearsay statements in the form of complaints,” under the guise of explaining the reasons for the officer’s subsequent actions. Schaffer is distinguishable on two important grounds. First, the hearsay in Schaffer was indirect hearsay. Although not eliciting the statement itself, the State “did indirectly that which it could not do directly,” that is admit the contents of the absent witness’s statement. Id. at 114. The court held that when the evidence is being offered to prove the statement made outside of court, clever framing of questions will not make the implied assertions in the answers nonhearsay. Id. In Head v. State, 4 S.W.3d 258, 263 (Tex. Crim. App. 1999), the court of criminal appeals considered an analogous case involving implied hearsay. In that case, the court acknowledged that it was a close case but held that the trial court could have reasonably concluded that the “testimony did not reveal to the jury the substance of the out-of-court statements,” and so there was not an implied assertion. Id.
By contrast, in this case, the actual out of court statements were admitted. Therefore, the rule from Shaffer and Head does not apply because there is no question, as there was in those cases, as to whether the out of court statements made their way to the jury; they did. The statements would be hearsay if offered for the truth of the matter asserted. But therein lies the second distinction between this case and Schaffer. In Schaffer the implied statements made it to the jury, and the jurors were permitted to consider those statements for the truth of the matter implied. Schaffer, 777 S.W.2d at 114 (“We therefore hold that the trial court improperly allowed the State to introduce hearsay testimony before the jury.”). In this case, the State did not offer these statements to prove their contents, and they were not admitted for that purpose. Rather, it offered them to show what the recipients did after hearing the information and to explain the course of events that followed. The jury was instructed accordingly.
Such evidence is permissible, but there remain boundaries. The out of court statements must have relevance other than to prove the contents of the statements. See Delapaz v. State, 228 S.W.3d 183, 211 (Tex. App.–Dallas 2007, pet. filed). Stated another way, a statement is hearsay unless its relevance does not depend on its being true. See Bell v. State, 877 S.W.2d 21, 24 (Tex. App.–Dallas 1994, pet. ref’d).10 Appellant did not object on the grounds that the evidence was irrelevant. Assuming that Appellant’s blanket hearsay objection was sufficient to apprise the trial court that the statements should not be admitted because they were not relevant if untrue, the trial court did not abuse its discretion. It allowed the statements to show what the witnesses did after being told of the assault because those actions did not depend on the statements being true.
Appellant further complains that the evidence admitted was broader than was necessary simply to show the reasons for the witnesses’ actions. For the most part, the State did ask its witnesses to relate what they had been told in a limited fashion, not to repeat the words, and to generalize. At least twice Appellant made further objections when a witness began to relate the details of the complaining witness’s report, and those objections were sustained. But there was also testimony that included the specifics of the sexual assault. Those specifics were not relevant to show why witnesses reported it to the next person.
Appellant obtained a running objection to hearsay evidence. Assuming this running objection was sufficient to preserve a complaint that the specifics of Appellant’s assault were not relevant, and further assuming that the trial court abused its discretion in allowing that testimony, any error in the admission of inadmissible hearsay is nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Lee, 21 S.W.3d at 538. Nonconstitutional error that does not affect substantial rights must be disregarded. 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. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
Appellant argues that he was harmed because his right to cross examine witnesses was damaged. He also argues that he could not effectively cross examine because he had to discredit four people and not just the complaining witness and that, because of the out of court statements, he “had been convicted before [the complaining witness] even testified.” These arguments do not show harm. Appellant had every opportunity to cross examine witnesses. In fact, some attorneys would relish the opportunity to examine a story from four different angles, with the vagaries of hindsight and memory, in an attempt to confuse the issues, if nothing else. See, e.g., United States v. Wade, 388 U.S. 218, 257, 87 S. Ct. 1926, 1948, 18 L. Ed. 2d 1149 (1967) (J. White, concurring in part, dissenting in part) (Writing about defense attorneys in criminal cases, Justice White wrote: “If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.”). Furthermore, Appellant did not need to discredit the other witnesses with respect to the statement they heard from the complaining witness. Two of the three witnesses readily admitted that they did not know anything about the offense except what they had heard from the complaining witness; the third witness was not asked.11
The trial court instructed the jury not to consider the statements for the truth of the matters asserted, and the complaining witness testified. The complaining witness, a member of the U.S. Army at the time of trial, apparently made a good witness,12 testified about the specifics of the complaint herself, and was available for cross examination. Furthermore, Appellant made a statement to the police that included an account that jurors could have taken as an admission of some of the allegations against him. In light of the circumstances, we are persuaded that any error in admitting the specifics of the complaining witness’s out of court report of the assault did not prejudice Appellant’s substantial rights. We overrule Appellant’s fourth, sixth, and eighth issues.
Disposition
Having overruled Appellant’s eight issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered November 30, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 One portion of the record is difficult to parse:
Q: Did you ever talk to [Appellant] about character witnesses, or do you recall?
A: I’m not certain. We did talk about – – yeah, we did. We did talk about that.
Q: Did you talk with [Appellant] about whether or not there might be people out there who could say something that would be beneficial to his case?
A: No. But, I suspect this couple sitting on the front row seem to have an opinion about every answer I give. I should have talked to them because I’m sure they would have had a key to the kingdom on this case.
And then
Q: . . . [w]as he able to give you any information or any witnesses that might be beneficial to his case?
A: Not really.
2 Counsel was also concerned that the witnesses would be cross examined about the other sexual assault allegation. This is a reason not to call a witness, but not a reason not to investigate.
3 We think counsel could have reasonably anticipated the kind of character witnesses who were developed in the motion for new trial. They were Appellant’s new wife, children, coworkers, and some of his new wife’s friends. They have affection for Appellant, but the character evidence they could have offered was little more than that.
4 The petition for discretionary review was sought on a ground not related to pretrial investigation.
5 Appellant does not argue that the investigation itself was below professional standards, just that leads were not investigated. In his brief, he essentially asks us to hold that “[Counsel] must investigate all leads which might generate mitigating evidence such as character witnesses who could put a favorable light on the client, and encourage jurors to assign a lower sentence.” To the extent that his argument could be construed as a contention that investigation of character witnesses is required by some professional standard, Appellant has not shown such a professional standard, and Strickland stands for the proposition that some limitations on investigation of character evidence can be reasonable. See Strickland, 466 U.S. at 699, 104 S. Ct. at 2070–71.
6 Appellant also asks rhetorically in his brief why his attorney did not present the fourteen character witnesses. The decision not to present witnesses who have been investigated is a different question. Counsel’s decisions about which witnesses to call are afforded substantial deference. See Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.–Houston [14th Dist.] 1989, pet. ref’d).
7 In each case, defense counsel did not uncover the truly atrocious conditions in which the defendant had grown up. See Rompilla, 545 U.S. 374, 391–92, 125 S. Ct. at 2468–69; Wiggins, 539 U.S. at 516–17, 123 S. Ct. at 2533.
8 Appellant also argues, without citation to authority, that his right to confront witnesses was violated because he was not able to cross examine the witness near in time to when the statements were made. While the Confrontation Clause causes many cross examinations to occur closer in time to accusatory statements, because it excludes many out of court accusations, that is not its purpose. We are aware of no timeliness requirement imposed by the Confrontation Clause, and Appellant has not directed us to any authority for such a proposition.
9 The Texas rules are broader than the Federal Rules of Evidence and do not permit evidence that includes an implied assertion. See Mosley v. State, 141 S.W.3d 816, 830 (Tex. App.–Texarkana 2004, pet. ref’d); Cathy Cochran, Texas Rules of Evidence Handbook, 766–772 (5th ed. 2003).
10 Another limitation, not raised by Appellant, is that even a relevant statement may be inadmissible under Rule of Evidence 403 if it is unduly prejudicial. See Cochran, supra note 9, at 782, n.124 (citing United States v. Reyes, 18 F.3d 65, 70–71 (2d Cir. 1994)).
11 For reasons that are difficult to discern, the State asked the witnesses if they believed the complaining witnesses. Quoting again from Justice White: “[Prosecutors] must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime.” Wade, 388 U.S. at 256, 87 S. Ct.. at 1947. Appellant did not object to this bolstering testimony, but seeking to show the veracity of statements admitted for reasons other than the truth of the matter asserted is inconsistent with the rationale for their admission.
12 This conclusion is not based on our assessment of her testimony, but based on Appellant’s counsel’s statement during trial that she had been an effective witness and his statement to the same effect during the hearing on the motion for new trial.