Affirmed and Memorandum Opinion filed October 7, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00701-CR
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DAPHNE JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1083468
M E M O R A N D U M O P I N I O N
A jury found appellant, Daphne Jones, guilty of aggravated sexual assault of a child and assessed punishment at 10 years confinement. In her sole issue on appeal, appellant asserts that she was denied effective assistance of counsel because her trial counsel failed to object to improper opinion testimony. We affirm.
Facts
Complainant=s paternal grandmother, Etna Riley, testified at trial that complainant=s mother died when she was a small child. Riley stated that she shared joint custody of complainant with complainant=s maternal grandmother, Carolyn Watson. According to Riley, complainant stayed with Riley on weekdays and with Watson on weekends. Watson had been in a romantic relationship with appellant for several years.
Around April 16, 2006, a few weeks after complainant=s seventh birthday, complainant and Riley were watching a news story involving a missing child. Riley explained to complainant that there are adults who hurt children, and that complainant should always talk to Riley if she had a problem or if she felt violated. Complainant became very upset and told Riley that appellant had sexually assaulted her while she had been visiting at Watson=s house. According to Riley, complainant told Riley that she had been watching television in her brother=s room when appellant called her into the living room; laid complainant on the floor; pulled her pants down; put her mouth on complainant=s vagina; and hurt complainant. Riley called the police and Children=s Protective Services.
Houston Police Officer Kelly Wallace, who was in charge of investigating complainant=s assault allegation, testified that complainant was interviewed by a forensic examiner at the Children=s Assessment Center and was taken to a hospital for a physical examination. The examination revealed no physical evidence of abuse. Officer Wallace stated that she reviewed complainant=s videotaped interview with the forensic examiner, and that the interview was not suggestive. Officer Wallace also conducted a supplemental interview with complainant.
Officer Wallace was not surprised that complainant=s medical exam did not reveal physical evidence of abuse because this case involved an oral sexual assault. Officer Wallace also stated that it is not uncommon for there to be a delay between abuse and outcry. Officer Wallace testified that she requested charges be brought against appellant for aggravated sexual assault after she reviewed complainant=s videotaped interview; reviewed complainant=s medical records; interviewed complainant, complainant=s brother, Riley, and Watson; and attempted to interview appellant, who refused to talk to Officer Wallace.
Complainant testified at trial that appellant had sexually assaulted her at Watson=s house sometime after her seventh birthday on March 28, 2006. Watson had left complainant and her brother in the care of appellant to go to a game room. Complainant testified that she had been watching television with her brother in her brother=s bedroom. When appellant called her into the living room, complainant complied because she thought it was time to eat. Complainant=s brother remained in his bedroom talking on the telephone. Complainant testified that after she entered the living room, appellant picked her up; laid her down on the floor; pulled down her pants and underwear; spread her legs apart with her hands; scooted up close between her legs and started licking her vagina; stopped licking her when her brother got off the telephone; and sat back on the couch.
Complainant testified that appellant licking her felt bad and wet and hurt a little bit. Complainant stated that she got up after appellant stopped licking her, pulled her underwear and pants up, and went back to her brother=s room. Complainant demonstrated on a doll how appellant picked her up, laid her on the floor, and pulled down her underwear. She identified the vagina on the doll as the place appellant had licked her. Complainant also testified that she told Riley about the assault after they watched a news story about a child getting hurt. Complainant identified appellant at trial as sitting in a wheelchair. Complainant testified that she had never seen appellant in a wheelchair before trial, and that appellant walked like a normal person but was not able to move around very quickly.
Appellant testified that her romantic relationship with Watson lasted about four years. She stated that her relationship with complainant was distant and she denied ever watching complainant or her brother when Watson went to a game room to play bingo. Appellant also testified that she seldom was alone with complainant or her brother. Appellant testified that she left Watson in January 2006 and moved in with two friends, Gerald Eagleton and Cedrick Wingate. Wingate and Eagleton confirmed that appellant had been staying with them since January 2006.
Appellant testified that she had injured her neck and lower back in a serious accident and had stopped working in September 2005. She said she had been in great pain since the accident, had gone to physical therapy for a year, and had been taking medication to relieve her pain. According to appellant, she was not in a wheelchair in January 2006 but was walking with a cane. Appellant testified that she felt better in March 2006 than at the time of trial because she received proper medication from her doctor. Appellant=s attorney asked her to demonstrate whether she could place his briefcase on the floor and get on her knees to simulate getting between complainant=s legs; appellant was unable to do so. Appellant did not present any medical records or call her doctor as a witness.
Appellant testified that she was able to cook, get in and out of her car, and drive. Riley testified that she saw appellant open the big heavy doors of her car without a problem, get in and out of the car by herself without struggling to do so, and drive the car. Riley also testified that she took complainant to Watson=s house between March 28 and April 16, 2006, and saw appellant at the house but never saw appellant use a wheelchair or a cane. Riley did not see appellant exhibiting difficulty walking, and Riley demonstrated for the jury how appellant was walking in early 2006.
Appellant denied molesting complainant and testified that complainant either fabricated the sexual assault or had been coached. Appellant did not recall Officer Wallace contacting her regarding the sexual assault investigation.
Analysis
To prevail on an ineffective assistance claim, appellant must show: (1) her trial counsel=s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Garza v. State, 213 S.W.3d 338, 347‑48 (Tex. Crim. App. 2007); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (en banc). Appellate review of trial counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Garza, 213 S.W.3d at 348.
If the reasons for counsel=s conduct at trial do not appear in the record and it is at least possible that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal. Id. To warrant reversal where trial counsel has not been afforded an opportunity to explain those reasons, the challenged conduct must be so outrageous that no competent attorney would have engaged in it. Roberts v. State, 220 S.W.3d 521, 533‑34 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007). A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally deficient. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).
Appellant argues that she was denied effective assistance of counsel because her trial counsel failed to object to the highlighted portion of the following exchange between Police Officer Wallace and the State:
THE STATE: When did, based on your investigation, [complainant] B when did this sexual assault occur on [complainant]?
THE WITNESS: [Complainant] said that it happened when she was seven.
THE STATE: And when did [complainant] B what is [complainant=s] birthday?
THE WITNESS: She turned seven on March the 28th.
THE STATE: Of?
THE WITNESS: >06.
THE STATE: 2006?
THE WITNESS: Yes.
THE STATE: And you testified earlier that [complainant] outcried or reported to her Granny Etna on what date?
THE WITNESS: I believe it was April the 16th but let me check. On April the 16th of 2006.
THE STATE: So, we=ve got a time period with B if [complainant=s] seven, the front end of that time period or time line starts with March 28th, 2006?
THE WITNESS: March 28th of 2006.
THE STATE: To April the 16th, 2006?
THE WITNESS: Correct.
THE STATE: So, on or about those dates is when this is alleged to have happened?
THE WITNESS: That=s correct.
THE STATE: And based on your investigation, you believe to be true?
THE WITNESS: I believe that to be the truth.
(Emphasis added.)
Although the record is silent regarding trial counsel=s trial strategy, appellant argues that there can be no conceivable trial strategy for failing to object to Officer Wallace=s testimony because expert testimony that a particular witness is truthful is inadmissible. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (en banc); Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993) (en banc). As a threshold matter, the challenged exchange is somewhat ambiguous; it is unclear whether the witness= answer, AI believe that to be the truth,@ refers to the dates or to the alleged conduct. In any event, we conclude that appellant cannot demonstrate prejudice even if it is assumed for argument=s sake that trial counsel=s failure to object to Officer Wallace=s testimony constituted deficient performance. Appellant argues that the sole issue before the jury was whether appellant sexually abused complainant and contends she was harmed because Officer Wallace was the only other witness the State called besides the complainant. Appellant stresses that she received a 10-year prison sentence.
In addition to Officer Wallace and the complainant, the State called complainant=s grandmother, Riley. Further, the jury heard from two of appellant=s friends, Eagleton and Wingate, whom her defense counsel called as witnesses in addition to appellant. Defense counsel=s theory at trial was that appellant did not have the physical capability to abuse complainant; that appellant did not live at the Watson house at the time of the alleged abuse; and that complainant fabricated the abuse because Riley wanted some of the worker=s compensation money appellant expected to receive for her accident-related injuries.
During closing argument, counsel argued that appellant was physically incapable of abusing complainant and was sitting in a wheelchair. Counsel reminded the jury that appellant was unable to handle his briefcase, bend down, and get on the floor as he had asked her to do for the jury to simulate the actions described by complainant. Defense counsel asked the jury to consider the testimony of appellant=s friends, Eagleton and Wingate, who had testified that appellant had a hard time getting around and was in pain. Counsel also stated that appellant had moved out three months before the time of the alleged abuse.
The State never mentioned Officer Wallace or her testimony during closing argument.
In addition to complainant=s testimony describing the sexual abuse, complainant=s grandmother Riley described how and when complainant made the outcry about the abuse. Riley testified that, when she took complainant to visit Watson between March 28, 2006 and the time of complainant=s outcry on April 16 or 17, 2006, she saw appellant at Watson=s house. Riley never saw appellant using a cane or a wheelchair. Riley demonstrated for the jury how appellant walked at that time. The jury also heard appellant=s statement that she felt better in March 2006 than she felt at trial because she was taking her medication as prescribed by her doctor in March 2006.
Riley also stated that appellant had no difficulties opening and closing the big heavy doors of her car and did not struggle getting in and out of her car. Both of her friends confirmed that appellant would drive her car Awhenever she had a doctor=s appointment or something.@ Appellant acknowledged she could get in and out of her car and drove her car to church and to go grocery shopping with her friends. The State emphasized that appellant presented no evidence of medical records or physician testimony to demonstrate that she was indeed physically incapable of abusing complainant.
During closing, the State disputed that the motivation for this allegation was worker=s compensation money. The State argued that appellant was the one who needed financial support and had to move in with her two friends after leaving Watson=s house. The State pointed out that appellant did not present any records from the Work Force Commission indicating she would be receiving worker=s compensation money. The State emphasized that Riley did not need appellant or her money because she was employed and was able to raise complainant. Riley testified that she worked as a private duty nurse taking care of critically ill people and had no problem making ends meet.
Finally, the punishment range for aggravated sexual assault of a child is 5 to 99 years or life imprisonment. See Tex. Penal Code Ann. ' 12.32 (Vernon 2003), ' 22.021(e) (Vernon Supp. 2008). Appellant was sentenced at the lower end of the possible punishment range. Although appellant apologized and asked for probation during the punishment phase of the trial, appellant maintained her innocence claiming she never harmed anyone, did not abuse complainant, and that complainant had lied about the abuse.
In light of this record, we conclude that appellant has not shown a reasonable probability that, but for the asserted error, the result of the proceeding would have been different. Because appellant failed to show that but for her trial counsel=s failure to object to Officer Wallace=s statement the outcome of the proceeding or punishment would have been different, she has failed to meet her burden and cannot prevail on her ineffective assistance claim.
Accordingly, we overrule appellant=s issue and affirm the trial court=s judgment.
/s/ William J. Boyce
Justice
Judgment rendered and Memorandum Opinion filed October 7, 2008.
Panel consists of Justices Yates, Seymore and Boyce.
Do not publish C Tex. R. App. P. 47.2(b).