Affirmed and Memorandum Opinion filed June 28, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00670-CR
Gerardo Amaya, Appellant
v.
The State of Texas, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1204157
MEMORANDUM OPINION
Appellant Gerardo Amaya was convicted of sexual assault of a child. The jury assessed punishment at five years and six months of imprisonment and a $10,000 fine. In his sole issue, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to object to or properly preserve for review the admission of testimony about the complainant’s credibility.[1] We affirm.
I. Background
Appellant is the complainant’s stepfather. The complainant, T.B., testified that when she was around the age of 13 or 14 in 2003, appellant would lie beside her on her bed at night. These visits progressed to physical touching. According to T.B.’s testimony, appellant started touching her vagina with his hand, penetrated her vagina with his finger, and placed his mouth on her vagina. T.B.’s mother and appellant eventually separated and T.B. resided with her mother.
In December 2008, T.B. told her mother that appellant had touched her inappropriately when T.B. was younger. After confronting appellant at his house, T.B. and her mother drove to the police station and made a report. T.B. filed a sexual-assault report with Deputy Tamara Simon and Sergeant Leitner. Yvonne Coleman, a deputy investigator with the Harris County Sherriff’s Office Child Abuse Unit, interviewed T.B. as part of a follow-up investigation. Appellant was charged by indictment with the offense of sexual assault of a child for placing his finger in T.B.’s sexual organ.
At trial, the State called Simon, Coleman, T.B.’s mother, and T.B. to testify. Pertinent to this appeal, the prosecutor asked Simon, Coleman, and T.B.’s mother about T.B.’s credibility in reporting the alleged abuse. Simon testified that T.B. appeared to be “shaken up,” “very shy,” and “kept looking at the ground” when she gave her statement. The prosecutor then asked:
Q: And based upon your training and your experience as an officer and as a trained sexual assault officer, how would you describe — did you find the statements of [T.B.] to be credible?
A: Yes.
Defense Counsel: Objection, relevance.
The Court: Overruled.
***
Q: Okay. Actually, let me back up for one second to the question I asked you about your experience, if you find [T.B.] to be credible.
A: Uh-huh.
Defense Counsel: Again, I object to the form of the question. It is —
The Court: That’s sustained. No speaking objections in this Court. Next question.
Coleman also testified that T.B. seemed “embarrassed,” had her head down, and “appeared ashamed” when she was interviewed. The prosecutor asked:
Q: And in that training are you taught methods or ways to help you determine whether you believe the victim’s credible?
A: Yes, as well as my years experiencing in interviewing and knowing the type questions and to be patient and allow the person to open up and speak at their will.
Q: Based on your training and experience did you find the Complainant, [T.B.], to be credible when you interviewed her?
A: Very credible.
In addition, T.B.’s mother was asked by the prosecutor whether she believed her daughter when T.B. told her what had happened and she responded, “Absolutely.” Appellant’s trial counsel did not object to this testimony from Coleman or T.B.’s mother. Appellant testified at trial and denied the allegations. In addition, two of appellant’s siblings and appellant’s fiancée testified on his behalf.
During closing argument, the prosecutor characterized the case as “a credibility contest.” The prosecutor also highlighted the testimony of Simon and Coleman:
So, who are you going to believe? Let’s look at the evidence that was presented to you.
You first heard from Deputy Simon who’s received lots of training and is trained how to interview witnesses, family violence witnesses, victims, sexual assault victims. She told you she and another sergeant were the first ones that took the statement from [T.B.] that night. And she found her to be credible. And [T.B.] was crying and scared and embarrassed and shy.
And it didn’t stop there. [T.B.] got re-interviewed then by Deputy Coleman who also testified who’s in the Child Abuse Unit who’s also received hours and hours of training, how to interview witnesses, how to judge their credibility. She found her to be credible and believable and found her to be consistent, ladies and gentlemen, because if what she told Deputy Coleman was different than what she told Deputy Simon, don’t you know you would have heard it from the Defense?
* * *
You heard Deputy Coleman who testified as to what she did in her investigation, that she interviewed [T.B.] and found her consistent and credible.
The jury convicted appellant of sexual assault of a child and assessed punishment at five years and six months’ confinement and fined appellant $10,000. Appellant did not file a motion for new trial. This appeal followed.
II. Analysis
In his sole issue, appellant contends that he received ineffective assistance of counsel in violation of the United States Constitution and Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2009). Specifically, appellant argues that his trial counsel failed to (1) object to Coleman’s testimony regarding her opinion that T.B.’s outcry of sexual abuse was “very credible”; (2) properly challenge and exclude Simon’s testimony regarding her opinion that T.B.’s outcry of sexual abuse was credible; and (3) object to T.B.’s mother’s testimony about her opinion as to the credibility of T.B.’s outcry statement.
A. Standard of Review
In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that (1) his trial counsel’s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Id.
An accused is entitled to reasonably effective assistance of counsel. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740. “Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 814. When determining the validity of an ineffective-assistance-of-counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
When the record is silent as to the reasons for counsel’s conduct, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Absent specific explanations for counsel’s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). However, when no reasonable trial strategy could justify trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel’s subjective reasons for acting as he did. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
If a criminal defendant can prove trial counsel’s performance was deficient, he must still affirmatively prove that he was prejudiced by counsel’s actions. Thompson, 9 S.W.3d at 812. This proof requires appellant to demonstrate a reasonable probability that, but for trial counsel’s unprofessional errors, the result of the proceeding would have been different. Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
B. Counsel’s Performance
The determination of a witness’s truthfulness lies solely within the jury’s province. See Yount v. State, 872 S.W.2d 706, 710 (Tex. Crim. App. 1993). It is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness. Lopez v. State, — S.W.3d —, No. PD-0481-10, 2011 WL 2408942, at *2 (Tex. Crim. App. June 15, 2011). This type of 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.” Yount, 872 S.W.2d at 709 (emphasis in original).
Here, appellant’s trial counsel objected to Simon’s testimony that she found T.B.’s statements to be credible when T.B. reported the allegations to Simon. The first objection on the ground of relevance was overruled; the second objection on the ground of the form of the question was sustained. Appellant assumes that error was not preserved because his trial counsel failed to object to the same opinion testimony offered through Coleman and T.B.’s mother.[2] Assuming without deciding that the testimony was inadmissible, there is no explanation in the record why trial counsel objected to Simon’s testimony about T.B.’s credibility but did not object to subsequent testimony about T.B.’s credibility from Coleman and T.B.’s mother.
The Court of Criminal Appeals recently held in Lopez v. State that when the record was silent as to why trial counsel allowed opinion testimony about the sexual-assault complainant’s credibility before the jury without objection, the appellant did not meet his burden under the first prong of Strickland. Lopez, 2011 WL 2408942, at *4. In accordance with Lopez, we will not speculate as to trial counsel’s strategy in the face of a silent record.[3] Id. at *3–4. Because the record is silent, appellant has failed to meet his burden under the first prong of Strickland. Appellant’s failure to meet his burden under the first prong of Strickland obviates our need to address the second prong of Strickland.
We overrule appellant’s sole issue.
III. Conclusion
Having overruled appellant’s sole issue, we affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Frost and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Appellant was represented by two attorneys at trial. He does not assign error to a specific attorney, but rather refers to “trial counsel.” It appears from the record that although both attorneys participated at trial, one of the attorneys had a larger role.
[2] We do not determine whether trial counsel preserved error by objecting to Simon’s testimony.
[3] The State’s theories are that perhaps trial counsel believed that he had adequately objected to the testimony or did not want to further emphasize the testimony by making repeated objections to it.