Steven Oliver v. State

IN THE
TENTH COURT OF APPEALS

No. 10-12-00389-CR

STEVEN OLIVER,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 13th District Court
Navarro County, Texas
Trial Court No. D34573-CR

MEMORANDUM OPINION

In six issues, appellant, Steven Alan Oliver, challenges his conviction for

continuous sexual abuse of children, a first-degree felony. We affirm.

I. BACKGROUND1

The record reveals that the Oliver family consisted of appellant, mother Lisa, and

six girls: Amy, Melissa, Autumn, Madysen, Melanie, and Abigail.2 In the instant case,

1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite
those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
appellant was initially charged by indictment with the continuous sexual abuse of

Madysen, Autumn, Melanie, and Melissa; however, because Autumn recanted

approximately two weeks before trial, the indictment was amended to reference only

Madysen, Melanie, and Melissa. At the conclusion of the evidence, the jury found

appellant guilty of the charged offense and assessed punishment at confinement for life

in the Institutional Division of the Texas Department of Criminal Justice. This appeal

followed.

II. ADMISSIBILITY OF OUTCRY TESTIMONY

In his third issue, appellant contends that the trial court abused its discretion by:

(1) failing to hold a proper hearing on the admissibility of outcry testimony that was

unreliable and should have been excluded; (2) determining that Autumn’s statements

were reliable under Texas Code of Criminal Procedure article 38.072; and (3) admitting

Madysen’s hearsay statement to Kristi Skains, a forensic interviewer for the Advocacy

Center for Crime Victims and Children.3 See TEX. CODE CRIM. PROC. ANN. art. 38.072

(West Supp. 2013).

A. Standard of Review and Applicable Law

We review the trial court’s admission of evidence for an abuse of discretion. De

La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The trial court has broad

2Though the parties refer to the Oliver children based on the names above, the record suggests
that some or all of the children’s names were changed upon being placed in the foster mother’s home. As
such, we need not identify the children by their initials, as we would normally do to protect their identity.

3 We note that appellant’s third issue is arguably multifarious. An issue is multifarious when it

raises more than one specific complaint, and we are permitted to reject multifarious issues on that basis
alone. Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010); Wood v. State, 18 S.W.3d 642, 649 n.6
(Tex. Crim. App. 2000). However, out of an abundance of caution, we will analyze appellant’s third
issue.

Oliver v. State Page 2
discretion in determining the proper outcry witness, and its determination will not be

disturbed absent an abuse of discretion. Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—

Dallas 1999, pet. ref’d) (citing Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990);

Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.—Fort Worth 1993, pet. ref’d)). If the

trial court’s ruling is within the zone of reasonable disagreement, there is no abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We consider the

ruling in light of what was before the trial court at the time the ruling was made and

uphold the trial court’s decision if it lies within the zone of reasonable disagreement.

Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).

The outcry testimony of a child victim is hearsay when it is offered for the truth

of the matter asserted. Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992).

However, it is admissible if it falls within an exception to the hearsay rule. Id. In child-

abuse cases, Texas Code of Criminal Procedure article 38.072, section 2(a) provides for

the admission of hearsay statements describing the offense that are made by the child

victim, who is twelve years or younger, to the first person eighteen years or older. TEX.

CODE CRIM. PROC. ANN. art. 38.072, § 2(a). To qualify as a proper outcry statement, the

child must have described the alleged offense in some discernible way and must have

more than generally insinuated that sexual abuse occurred. See Sims, 12 S.W.3d at 500.

“Multiple outcry witnesses can testify about different instances of abuse

committed by the defendant against the victim.” Tear v. State, 74 S.W.3d 555, 559 (Tex.

App.—Dallas 2002, pet. ref’d) (citing Hernandez v. State, 973 S.W.2d 787, 789 (Tex.

App.—Austin 1998, pet. ref’d)). “If the child victim first described one type of abuse to

Oliver v. State Page 3
one outcry witness, and first described a different type of abuse to a second outcry

witness, the second witness could testify about the different instance of abuse.” Id.

(citing Hernandez, 973 S.W.2d at 789 (holding that a CPS worker could testify about a

victim’s outcry of sexual assault because the victim’s previous outcry was to his mother

about another sexual assault at a different location); Turner v. State, 924 S.W.2d 180, 183

(Tex. App.—Eastland 1996, pet. ref’d) (stating that a police officer could testify about a

victim’s outcry about penile penetration because the victim’s previous outcry to a

counselor was about digital penetration)). In other words, “[b]ecause of the way in

which the statute is written, an outcry witness is not person-specific, but event-

specific.” Broderick v. State, 35 S.W.3d 67, 74 (Tex. App.—Texarkana 2000, pet. ref’d); see

Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).

B. Discussion

In his first argument, appellant complains that the trial court abused its

discretion by failing to hold a proper hearing to determine the reliability of the outcry

statements made by the children. However, a review of the record belies appellant’s

first contention. On October 16, 2012, prior to the introduction of the outcry testimony,

the trial court conducted a hearing outside the presence of the jury to determine the

reliability of the testimony. Specifically, the trial court considered the State’s notices of

“Intent to Introduce Child’s Hearsay Outcry Statement.” Included in the notices were

the names of the people to whom the child made the statement, the circumstances

under which the statement was given, the approximate date on which the statement

was made, and a summary of the statement. For Madysen, the State gave notice of

Oliver v. State Page 4
three outcry witnesses: the foster mother, Skains, and Pamela Crumpton, Madysen’s

counselor. With respect to Melissa, the State gave notice that Deborah January, the

child’s CPS caseworker, the foster mother, and Skains were the anticipated outcry

witnesses. Moreover, at the hearing, the trial court reviewed the notices, and the State

explained the contents of the notices. Ultimately, the trial court ruled that the outcry

statements made by Madysen and Melissa were reliable “based on the time, content,

and circumstances of the statements and the child is available to testify—the children

are available to testify.”

Nevertheless, appellant appears to argue that the hearing was not proper

because the outcry witnesses were not actually called as witnesses at the hearing.

However, article 38.072 does not specify the manner in which a court must consider and

evaluate the outcry statements. See TEX. CODE CRIM. PROC. ANN. art. 38.072. It merely

states that the trial court must hold a hearing outside the presence of the jury to

determine whether the outcry statements are reliable based on the time, content, and

circumstances of the statements. Id. at art. 38.072, §2(b)(2); see Sanchez v. State, 354

S.W.3d 476, 484-85 (Tex. Crim. App. 2011). Indeed, the Texas Court of Criminal

Appeals has stated that article 38.072 “charges the trial court with determining the

reliability based on ‘the time, content, and circumstances of the statement’; it does not

charge the trial court with determining the reliability of the statement based on the

credibility of the outcry witness.” Sanchez, 354 S.W.3d at 487-88 (quoting TEX. CODE

CRIM. PROC. ANN. art. 38.072, §2(b)(2)). More specifically, the Sanchez Court stated that

article 38.072 does not authorize “elaborate mini-trials in which defendants could cross-

Oliver v. State Page 5
examine the outcry witness regarding biases in order to ferret out background evidence

of prompting or manipulation.” Id. at 488. Furthermore, “[t]rial courts have great

discretion in how they manage their Article 38.072 hearings.” Id. Here, the record

establishes that the trial court conducted a proper outcry hearing and that it did not

abuse its discretion when it found the statements were reliable based on the time,

content, and circumstances of the statements. See id. at 488-89; see also TEX. CODE CRIM.

PROC. ANN. art. 38.072, §2(b).

With respect to appellant’s complaints about Autumn’s outcry statements, we

note that the State amended the indictment to remove Autumn as a victim; as such,

article 38.072 was not applicable to her outcry statements. See TEX. CODE CRIM. PROC.

ANN. art. 38.072, § 1. The State argues that Autumn’s statements to others were

admissible as prior inconsistent statements under Texas Rules of Evidence 801(e)(1)(A)

and 806. See TEX. R. EVID. 801(e)(1)(A), 806. Here, Autumn recanted her outcry, and

appellant first introduced her recantation, over the State’s objection, during the cross-

examination of Crumpton. Moreover, appellant cross-examined several of the State’s

witnesses about Autumn’s recantation.

Nevertheless, even if the trial court erred in admitting Autumn’s outcry

statements, we conclude that any such error was harmless in this case. We may not

reverse a conviction for non-constitutional error unless the error affects the defendant’s

substantial rights. See TEX. R. APP. P. 44.2(b). The admission of inadmissible hearsay is

non-constitutional error, and such error does not affect a substantial right if, after

examining the record as a whole, we are reasonably assured that the error did not

Oliver v. State Page 6
influence the verdict or had but a slight effect. Chapman v. State, 150 S.W.3d 809, 814

(Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Here, appellant was charged with

continuous sexual assault of a child—namely, Madysen, Melanie, and Melissa. As

mentioned below, the evidence supporting appellant’s conviction is legally sufficient,

irrespective of Autumn’s outcry statements. As such, we are reasonably assured that

the complained-of error did not influence the verdict or had but a slight effect. See

Chapman, 150 S.W.3d at 814.

And finally, appellant argues that Skains’s testimony regarding statements

Madysen made about seeing appellant sexually abuse Abigail and Melanie was

inadmissible hearsay that is not included within the statutory meaning of outcry

statements under article 38.072. See TEX. CODE CRIM. PROC. ANN. art. 38.072. At trial,

appellant objected to Skains’s testimony about the nature of Madysen’s outcry on the

grounds that he was not provided with notice that Skains would be called as an outcry

witness with respect to Madysen. The trial court overruled appellant’s objection but

granted him a running objection. When Skains was later asked about the content of

Madysen’s outcry, appellant did not specifically object on the grounds that it was

inadmissible hearsay not included within the statutory meaning of outcry statements

under article 38.072. See id.

To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires the

complaining party to make a specific objection or complaint and obtain a ruling thereon

before the trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002). Texas courts have held that points or error on appeal must

Oliver v. State Page 7
correspond or comport with objections and arguments made at trial. Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1999); see Wright v. State, 154 S.W.3d 235, 241 (Tex.

App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the

issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154

S.W.3d at 241. Because appellant’s appellate argument with respect to Skains’s

testimony does not comport with the arguments made at trial, we cannot say that

appellant has preserved this complaint for review. See TEX. R. APP. P. 33.1(a); see also

Wilson, 71 S.W.3d at 349; Wright, 154 S.W.3d at 241. We overrule appellant’s third issue.

III. CROSS-EXAMINATION OF CPS SUPERVISOR LAURA WHITE AND THE FOSTER
MOTHER

In his fifth and sixth issues, appellant argues that the trial court erred in denying

him the opportunity to cross-examine CPS supervisor Laura White and the foster

mother.

A. Applicable Law

The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This

procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas,

380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273

S.W.3d 671, 680 (Tex. Crim. App. 2008).

The Sixth Amendment protects the defendant’s right not only to confront the

witnesses against him, but to cross-examine them as well. See Davis v. Alaska, 415 U.S.

Oliver v. State Page 8
308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 347 (1974). “The exposure of a witness’

motivation in testifying is a proper and important function of the constitutionally

protected right of cross-examination.” Davis, 415 U.S. at 316-17; 94 S. Ct. at 1110. The

accused is entitled to great latitude to show a witness’ bias or motive to falsify his

testimony. See Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).

However, the right of cross-examination is not unlimited. The trial court retains

wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van

Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 674 (1986). The trial court

must carefully consider the probative value of the evidence and weigh it against the

risks of admission. See Hodge, 631 S.W.2d at 758. These potential risks include “the

possibility of undue prejudice, embarrassment or harassment to either a witness or a

party, the possibility of misleading or confusing a jury, and the possibility of undue

delay or waste of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000);

see also Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993). Moreover, “the

Confrontation Clause guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, or to whatever extent, the defense

might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 15 (1985)

(emphasis in original); see Walker v. State, 300 S.W.3d 836, 844-45 (Tex. App.—Fort

Worth 2009, pet. ref’d).

B. White’s testimony

On appeal, appellant argues that he should have been able to cross-examine

White about an investigation into G.D., the father of the children’s adoptive father, who

Oliver v. State Page 9
was convicted in 2011 for continuous sexual abuse of his adopted son, T.D. Specifically,

appellant sought to inform the jury that the child victims in this case may have had

contact with G.D. considering they lived in close proximity to one another.

At trial, the State objected to appellant’s questioning of White regarding G.D. as

irrelevant and prejudicial. See TEX. R. EVID. 401, 403. Any evidence that is both material

and probative is relevant. Id. at R. 401. All relevant evidence is admissible unless

otherwise excepted by the Constitution, statute, or other rules. Id. at R. 402. Evidence is

relevant if it has any tendency to make more probable or less probable the existence of a

consequential fact. See id. at R. 401; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.

2003). Evidence that is not relevant is inadmissible. TEX. R. EVID. 402. “If the trial court

determines the evidence is irrelevant, the evidence is absolutely inadmissible and the

trial court has no discretion to admit it.” Webb v. State, 991 S.W.2d 408, 418 (Tex. App.—

Houston [14th Dist.] 1999, no pet.) (citing Pritchett v. State, 874 S.W.2d 168, 173-74 (Tex.

App.—Houston [14th Dist.] 1994, pet. ref’d)). “Questions of relevance should be left

largely to the trial court and will not be reversed absent an abuse of discretion.” Id.

(citing Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)).

After our review of the record, we cannot say that the trial court abused its

discretion in denying appellant the opportunity to cross-examine White regarding G.D.

For several reasons, we hold that testimony pertaining to G.D. was irrelevant to the case

at bar. First, in testimony heard outside the presence of the jury, White testified that,

based on her knowledge of the investigation, G.D. sexually abused his sons, not his

daughters. Furthermore, there is no evidence in the record indicating that any of the

Oliver v. State Page 10
children in the present case identified G.D. as the perpetrator of the sexual abuse. In

fact, several witnesses testified that the children identified only appellant as the

perpetrator of the sexual abuse in this case. Additionally, State’s exhibit 5, a timeline

which was admitted into evidence, illustrates that Melissa made a partial outcry prior to

being placed in the foster mother’s home. Autumn and Madysen’s outcries occurred a

few months after being placed in the foster mother’s home; however, once again,

neither child identified G.D. as a perpetrator of the sexual abuse.

Given the evidence mentioned above, we cannot say that testimony regarding

G.D. had any tendency to make more probable or less probable the existence of a

consequential fact. See TEX. R. EVID. 401; see also Moses, 105 S.W.3d at 626. Admission of

the proffered evidence would have misled the jury, confused the issues, and caused

undue delay. See Lopez, 18 S.W.3d at 222; Chambers, 866 S.W.2d at 27; Hodge, 631 S.W.2d

at 758. Accordingly, we agree with the trial court’s conclusion that the proffered

testimony is irrelevant and therefore hold that the trial court did not err in prohibiting

appellant from cross-examining witnesses about G.D. See Van Arsdall, 475 U.S. at 678,

106 S. Ct. at 1434-35; see also TEX. R. EVID. 401; Lopez, 18 S.W.3d at 222; Chambers, 866

S.W.2d at 27; Hodge, 631 S.W.2d at 758.

C. Foster mother’s testimony

With respect to the foster mother, appellant asserts that he should have been able

to cross-examine the foster mother about: (1) her own experience as a victim of sexual

abuse; (2) the sexual abuse of her own children by her ex-husband; (3) the proximity of

her house to a known child-sexual offender, G.D.; (4) the relationship the children may

Oliver v. State Page 11
have had with G.D.; and (5) any contact the children may have had with J.M., the foster

mother’s adult son who is under indictment for possession of child pornography.

Appellant believed that this evidence demonstrates the possibility that the children

made false allegations only after they had been placed in the foster mother’s home.

At the outset, we note that we have previously concluded that the trial court did

not abuse its discretion in prohibiting appellant from cross-examining witnesses about

G.D. because such evidence is irrelevant. Accordingly, we need not address appellant’s

third and fourth contentions as to the foster mother.

Regarding appellant’s remaining contentions, the record reflects that the trial

court conducted two hearings outside the presence of the jury to determine the

relevance of the topics on which appellant sought to cross-examine the foster mother.

At the first hearing, the trial court heard evidence concerning G.D. and J.M. During

cross-examination, the foster mother testified that she had been through foster-care

training and had imposed a household rule that children in her home were not allowed

to be alone with an adult. The foster mother noted that there had to be at least two

children per each adult and that, based on this rule, she was certain that none of the

Oliver children who had been placed with her had been alone with G.D. or J.M. The

foster mother also stated that none of the Oliver children made outcries of sexual abuse

against G.D. or J.M. The foster mother denied coaching the children, and she did not

believe that the children made outcries of sexual abuse to make her happy or to have

something in common with her. At the conclusion of the first hearing, the trial court

determined that appellant could not cross-examine the foster mother on these topics.

Oliver v. State Page 12
 At the second hearing, the foster mother testified that there had been phone calls

made to CPS “against [her],” including allegations that she used excessive discipline

and over-drugged her children. However, none of the reports were substantiated. The

foster mother also recounted that her ex-husband had physically and sexually abused

her biological daughter over fifteen years ago. Nevertheless, none of the above-

information involved the Oliver children. Accordingly, at the conclusion of the second

hearing, the trial court prohibited appellant from cross-examining the foster mother

about the aforementioned information because the information was determined to be

irrelevant.4

After reviewing the record, we fail to see how the complained-of evidence is

relevant to this case. Specifically, none of the Oliver children made outcries of sexual

abuse against G.D., J.M., or the foster mother’s ex-husband. Moreover, the foster

mother’s testimony was that none of the Oliver children were left alone with G.D., J.M.,

or the foster mother’s ex-husband. Additionally, the foster mother’s encounters with

CPS and her own past experience as a victim of sexual abuse do not have a tendency to

make more probable or less probable the existence of a consequential fact. See id. at R.

401; see also Moses, 105 S.W.3d at 626. Accordingly, we cannot say that the trial court

4 At trial and on appeal, the State argued that the complained-of topics were also barred by Texas
Rule of Evidence 608(b), which provides that a witness’s credibility may not be impeached with specific
instances of the witness’s conduct other than a criminal conviction as provided in Texas Rule of Evidence
609(a). See TEX. R. EVID. 608(b). However, we note that the Texas Court of Criminal Appeals has noted
that the Confrontation Clause of the Sixth Amendment may require admission of evidence that Rule
608(b) would otherwise bar. See Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000). Specifically, the
Billodeau Court referenced an exception to Rule 608(b), Texas Rule of Evidence 613(b), which provides
that a witness may be impeached by using extrinsic evidence to show bias or interest. 277 S.W.3d 34, 40
(Tex. Crim. App. 2009) (citing TEX. R. EVID. 613(b)). However, because we have determined that the
complained-of topics are irrelevant to the case at bar, we need not analyze the impact of Texas Rule of
Evidence 608(b) on this case.

Oliver v. State Page 13
erred in prohibiting appellant from cross-examining the foster mother about the topics

listed above. See Van Arsdall, 475 U.S. at 678, 106 S. Ct. at 1434-35; see also TEX. R. EVID.

401; Lopez, 18 S.W.3d at 222; Chambers, 866 S.W.2d at 27; Hodge, 631 S.W.2d at 758. We

therefore overrule appellant’s fifth and sixth issues.

IV. THE JURY CHARGE

In his second issue, appellant argues that the trial court erred by failing to charge

the jury regarding the necessity of unanimously finding that the alleged acts of sexual

abuse occurred after September 1, 2007. Or, in other words, the trial court erred by

failing to instruct jurors that they were prohibited from convicting appellant for acts

committed before September 1, 2007.

A. Applicable Law

In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

Oliver v. State Page 14
 Appellant admits that he did not object to the jury charge; thus he must show

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the final arguments

of the parties, and any other relevant information revealed by the record of the trial as a

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B. Discussion

It is undisputed that section 21.02 of the Texas Penal Code, the operative

statutory provision in this case, first became effective on September 1, 2007. See Act of

May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127,

1148; see also Martin v. State, 335 S.W.3d 867, 873 (Tex. App.—Austin 2011, pet. ref’d).

“An offense is committed before the effective date of the statute if any element of the

offense occurs before that date.” Martin, 335 S.W.3d at 873; see, e.g., McGough v. State,

No. 11-10-00073-CR, 2012 Tex. App. LEXIS 1669, at **20-21 (Tex. App.—Eastland Mar. 1,

2012, pet. ref’d) (mem. op., not designated for publication). Thus, the State could not

rely on any “act of sexual abuse” that occurred before September 1, 2007, to prove the

offense of continuous sexual abuse of a young child. See Martin, 335 S.W.3d at 873; see

also McGough, 2012 Tex. App. LEXIS 1669, at **20-21. Instead, to obtain a conviction in

this case, the State was required to prove that continuous sexual abuse occurred for a

period of thirty or more days during the time period beginning on September 1, 2007,

Oliver v. State Page 15
and ending on January 28, 2008. See Klein v. State, 273 S.W.3d 297, 303 n.5 (Tex. Crim.

App. 2008) (noting that the State is not required to prove the specific date the offense

occurred when an “on or about” date is alleged within the indictment); Wright v. State,

28 S.W.3d 526, 532 (Tex. Crim. App. 2000).

On appeal, the State acknowledges that the trial court had a sua sponte duty to

instruct the jury that they were not permitted to convict appellant for acts committed

prior to September 1, 2007. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)

(providing, among other things, that the trial court “shall . . . deliver to the jury . . . a

written charge distinctly setting forth the law applicable to the case . . . .”); see also

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (noting that the trial judge is

“ultimately responsible for the accuracy of the jury charge and accompanying

instructions”). As such, the State concedes that there was error in the trial court’s

charge to the jury. Nevertheless, the State asserts that the error was not so egregious as

to necessitate reversal of appellant’s conviction.

“After finding error in the court’s charges, we must next consider whether

Appellant was harmed by the error.” Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.

App. 2011) (citing Alberty v. State, 250 S.W.3d 115, 119 (Tex. Crim. App. 2008)). When

the requirements of Texas Code of Criminal Procedure article 36.14 have been

disregarded, article 36.19 establishes the standard for reversal on appeal: “the judgment

shall not be reversed unless the error appearing from the record was calculated to injure

the rights of [the] defendant, or unless it appears from the record that the defendant has

not had a fair and impartial trial.” TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006).

Oliver v. State Page 16
 Here, the jury heard testimony from Melissa, CPS workers, Skains, and the foster

mother—all of whom testified that the alleged sexual abuse began when the Oliver

family lived in Oregon and continued after the family moved to Texas. In fact, the

record reflects that the Olivers moved from Oregon to Texas in 2007. Witnesses testified

that many instances of sexual abuse occurred from the time the Olivers moved to Texas

until March 2008. Specifically, Melissa testified that she observed Abigail being

sexually abused when Abigail was about four years old. The foster mother testified that

Abigail was eight years old at the time of trial—October 16, 2012; as such, an inference

could be made that Abigail was sexually abused in 2008, or, in other words, after

September 1, 2007. Additionally, Deborah January, a conservatorship caseworker for

CPS, stated that she received information from the therapist of the children that Melissa

had “made another outcry about her father molesting her and that she indicated that it

happened in Oregon and also in Texas at the house on Magnolia.” January also

confirmed that Autumn told her that appellant had touched her private area and did

bad things to her “at the Magnolia house when her dad was drinking alcohol.” Skains

noted that the girls told her that appellant sexually abused them in the yellow house

with a bow, which Amy identified as the Magnolia house in Corsicana, Texas.

Moreover, January recounted that, a day before removal on March 28, 2008, Melissa

made an outcry to her biological mother about recent sexual abuse, which suggests that

at least two instances of sexual abuse occurred for a period of thirty days after

September 1, 2007.

Oliver v. State Page 17
 After reviewing the record, we conclude that the charge error was not

egregiously harmful. See Taylor, 332 S.W.3d at 488-89; Martin, 335 S.W.3d at 876.

Although the jury could not convict appellant for continuous sexual abuse based on his

conduct prior to September 1, 2007, the jury could consider such conduct as

circumstantial evidence of appellant’s conduct between September 1, 2007 and March

28, 2008—the date when the children were removed from the Oliver home. See Taylor,

332 S.W.3d at 488-93; Martin, 335 S.W.3d at 876; see also TEX. CODE CRIM. PROC. ANN. Art.

38.37 (West Supp. 2013). Moreover, as mentioned above, appellant’s defense was that

the testimony of the children was not credible and that no acts of sexual abuse occurred

at any time. If the jurors believed the children and the caseworkers, and it is plain that

they did, it is unlikely that appellant’s sexually abusive acts stopped before September

1, 2007. Based on the circumstantial evidence above, the jurors could have lawfully

convicted appellant for continuous sexual abuse even if they had been properly

instructed not to base a conviction on his conduct prior to September 1, 2007. See Taylor,

332 S.W.3d at 488-89 (concluding that, in an aggravated-sexual-assault case, appellant

was not egregiously harmed by charge error that presented the jury with a much

broader chronological perimeter than is permitted by law); Martin, 335 S.W.3d at 876;

see also Williams v. State, 305 S.W.3d 886, 892 (Tex. App.—Fort Worth 2010, no pet.)

(holding that the jury must only reach a unanimous verdict concerning whether the

defendant committed two or more acts of sexual abuse during a period that is thirty

days or more and that the jury did not have to unanimously agree on which specific

acts of sexual abuse were committed). Accordingly, we cannot say that the charge error

Oliver v. State Page 18
in this case was so egregiously harmful that it deprived appellant of a fair trial. See

Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121; Olivas, 202 S.W.3d at 144;

Almanza, 686 S.W.2d at 171. We overrule appellant’s second issue.

V. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends that the evidence supporting his conviction

is insufficient to demonstrate that the alleged acts took place over a thirty-day period or

that the acts occurred after September 1, 2007, the effective date of the operative statute.

We disagree.

A. Standard of Review and Applicable Law

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
“familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. “Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.”
Hooper, 214 S.W.3d at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

Oliver v. State Page 19
the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial

evidence are treated equally: “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

In this case, the hypothetically-correct jury charge for the continuous sexual

abuse of a child required the State to prove beyond a reasonable doubt that appellant:

(1) committed two or more acts of sexual abuse; (2) during a period that was at least

thirty days in duration; (3) that at the time of the acts of sexual abuse, the defendant was

seventeen years of age or older and the victim was a child younger than fourteen years

of age. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2013); see also Michell v. State,

Oliver v. State Page 20
381 S.W.3d 554, 561 (Tex. App.—Eastland 2012, no pet.). The “acts of sexual abuse”

alleged by the State include two acts of aggravated sexual assault and one act of

indecency with a child. A person commits aggravated sexual assault if he intentionally

or knowingly causes the penetration of a child’s sexual organ, or if he intentionally or

knowingly causes the sexual organ of a child to contact the mouth of another person.

See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(1)(B)(iii), (a)(2)(b)(1) (West Supp.

2013). Indecency with a child includes touching any part of a child’s genitals with

intent to arouse or gratify the sexual desire. See TEX. PENAL CODE ANN. § 21.11(a)(1),

(c)(1) (West 2011).

B. Discussion

Here, CPS investigator Jamie Beesley testified that the Oliver family moved from

Oregon to Texas in 2007 and that Texas CPS first became involved with the family in

February 2008. As noted above, witnesses testified that many instances of sexual abuse

occurred from the time the Olivers moved to Texas until March 2008. Specifically,

Melissa testified that she observed Abigail being sexually abused when Abigail was

about four years old. The foster mother testified that Abigail was eight years old at the

time of trial—October 16, 2012; as such, an inference could be made that Abigail was

sexually abused in 2008, or, in other words, after September 1, 2007. Additionally,

January stated that she received information from the therapist of the children that

Melissa had “made another outcry about her father molesting her and that she

indicated that it happened in Oregon and also in Texas at the house on Magnolia.”

January also confirmed that Autumn told her that appellant had touched her private

Oliver v. State Page 21
area and did bad things to her “at the Magnolia house when her dad was drinking

alcohol.” Skains noted that the girls told her that appellant sexually abused them in the

yellow house with a bow, which Amy identified as the Magnolia house in Corsicana,

Texas. Moreover, January recounted that, a day before removal on March 28, 2008,

Melissa made an outcry to her biological mother about recent sexual abuse, which

suggests that at least two instances of sexual abuse occurred for a period of thirty days

after September 1, 2007.

Additionally, Madysen testified that appellant had rubbed her “boobies” when

they lived in the yellow house on Magnolia. Autumn stated that she believed that

appellant had touched Melissa’s private areas and that she made her initial outcries,

which she eventually recanted, to protect Melissa. On one occasion, Autumn observed

Melissa crying while talking to her biological mother. Autumn was told to “get out of

the room”; however, she overheard her biological mother tell Melissa to stay away from

appellant. Melissa testified that appellant would “put his private parts next to mine”

while they both were naked. Melissa also noted that appellant “used his private and

started to mess with mine” and that she could feel appellant’s private go inside her

private. Melissa recounted that this happened a couple of times and that it hurt. In

addition, Melissa testified that she observed appellant touch the privates of Abigail and

Melanie. With respect to Melanie, Melissa saw, on two occasions, appellant holding his

private and trying to “put it inside [Melanie’s].” With regard to Abigail, Melissa

remembered seeing appellant “rubbing his private up against [Abigail’s].” In fact, in

Oliver v. State Page 22
one of her outcry interviews, Melissa noted that “she saw [appellant] rubbing his

private against Abigail’s butt.”

In her August 2009 outcry interview, Melissa stated that appellant tried to put

his private in her mouth when she was eight or nine years old and that it happened

once in appellant’s truck and another time in the house. Melissa also noted in her

August 2009 outcry interview that appellant “asked her to rub her pee pee on his chest”

and that something “came out of the end of his pee pee.” And finally, with regard to

her age, Melissa stated that she was born on January 29, 1999; thus, with respect to the

oral sex acts referenced in Melissa’s August 2009 outcry interview, those acts must have

transpired between January 29, 2007 and January 27, 2008—a range of dates that

includes time after September 1, 2007.

Although the child victims in this case were unable to articulate the exact times

and dates of the sexual abuse perpetrated by appellant, there was sufficient evidence to

allow the jury to determine whether the crimes occurred during a period that was thirty

days or more after September 1, 2007. See Williams, 305 S.W.3d at 890 n.7 (“Arguably

this [the child’s inability to articulate the exact dates when the abuse occurred] is

precisely the kind of situation the Legislature considered when it enacted Section 21.02

of the Texas Penal Code.” (citing Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App.

2006) (Cochran, J., concurring))). Therefore, viewing the evidence in the light most

favorable to the prosecution, we conclude that a rational trier of fact could have found

beyond a reasonable doubt that appellant sexually abused Madysen, Melanie, and

Melissa during a period that is thirty or more days in duration after September 1, 2007.

Oliver v. State Page 23
See TEX. PENAL CODE ANN. § 21.02; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Michell, 381

S.W.3d at 561; Williams, 305 S.W.3d at 890 n.7; see also Cantu v. State, No. 13-10-00270-

CR, 2011 Tex. App. LEXIS 6658, at **14-16 (Tex. App.—Corpus Christi Aug. 22, 2011,

pet. ref’d) (mem. op., not designated for publication) (concluding that the evidence

supporting Cantu’s conviction for continuous sexual abuse of a child is sufficient

despite Cantu’s argument that the child victims testified about the time line in broad

generalities and one of the child victims allegedly never specifically testified about

sexual abuse occurring during the time period specified in the indictment). Therefore,

the evidence was legally sufficient to support appellant’s conviction for continuous

sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02; Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Michell, 381 S.W.3d at 561; Williams, 305 S.W.3d at 890 n.7; see also Cantu v.

State, 2011 Tex. App. LEXIS 6658, at **14-16. We overrule appellant’s first issue.

VI. INEFFECTIVE ASSISTANCE OF COUNSEL

In his fourth issue, appellant complains that his trial counsel did not provide

effective assistance of counsel.

A. Applicable Law

To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,

80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

First, appellant must show that counsel was so deficient as to deprive appellant of his

Sixth Amendment right to counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Second, appellant must show that the deficient representation was prejudicial and

Oliver v. State Page 24
resulted in an unfair trial. Id. To satisfy the first prong, appellant must show that his

counsel’s representation was objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, appellant must show that

there is “a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable

probability exists if it is enough to undermine the adversarial process and thus the

outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett v. State, 65

S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks 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. Our review is highly deferential

and presumes that counsel’s actions fell within a wide range of reasonable professional

assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813.

The right to “reasonably effective assistance of counsel” does not guarantee

errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v.

State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). “Isolated instances in the record

reflecting errors of commission or omission do not cause counsel to become ineffective,

nor can ineffective assistance of counsel be established by isolating or separating out

one portion of the trial counsel’s performance for examination.” Ex parte Welborn, 875

S.W.2d 391, 393 (Tex. Crim. App. 1990). Appellant bears the burden of proving by a

preponderance of the evidence that counsel was ineffective, and an allegation of

ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813.

Oliver v. State Page 25
 Trial court counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111

(Tex. Crim. App. 2003). Specifically, when the record is silent regarding the reasons for

counsel’s conduct, a finding that counsel was ineffective would require impermissible

speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—

Houston [1st Dist.] 1996, no pet.). Therefore, absent specific explanations for counsel’s

decisions, a record on direct appeal will rarely contain sufficient information to evaluate

an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). To warrant reversal without affording counsel an opportunity to explain his

actions, “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 (Tex. Crim. App. 2007).

B. Discussion

The record reflects that appellant’s trial counsel filed numerous pre-trial motions,

including several motions in limine. Moreover, appellant’s trial counsel vigorously

objected to outcry hearsay testimony and argued that the outcry witnesses presented by

the State were improper. Appellant’s trial counsel lodged numerous other objections as

well. On appeal, appellant recognizes that most of his complaints about trial counsel’s

representation should be raised in a writ of habeas corpus. However, he does assert

that trial counsel’s failure to object to the jury charge is so egregious that it sufficiently

establishes his ineffective-assistance-of-counsel claim on the trial record alone. We

disagree.

Oliver v. State Page 26
 Appellant specifically argues that his trial counsel should have requested an

instruction that the jury had to unanimously find that two or more of the acts described

in the indictment occurred after September 1, 2007, the date on which the operative

statute became effective. As noted above, the failure to include such an instruction

constitutes charge error; however, the error did not egregiously harm appellant,

especially in light of the testimony adduced at trial and trial counsel’s strategy.

Specifically, appellant’s trial counsel advanced a common defensive theory—that no

sexual abuse occurred at any time. See Taylor, 332 S.W.3d at 489-93; Martin, 335 S.W.3d

at 876. Though we look to the totality of counsel’s representation, we note that an error

in trial strategy will be deemed inadequate only if counsel’s action lacked any plausible

basis. See Ex parte Welborn, 875 S.W.2d at 393; see also Ex parte Burns, 601 S.W.2d 370, 372

(Tex. Crim. App. 1980).

Here, if trial counsel had objected to the jury charge and requested the inclusion

of an instruction limiting the dates to after September 1, 2007, the jury could have

interpreted the instruction as an admission by appellant that sexual abuse had occurred

prior to this date. Such an instruction would have undermined trial counsel’s defensive

theory that no sexual abuse occurred at any time. As such, we cannot say that trial

counsel’s failure to object to the jury charge and to request the aforementioned

instruction was so outrageous that no competent attorney would have done it. See

Roberts, 220 S.W.3d at 533; see also Thompson, 9 S.W.3d at 814 (“An appellate court

should be especially hesitant to declare counsel ineffective based upon a single alleged

miscalculation during what amounts to otherwise satisfactory representation, especially

Oliver v. State Page 27
when the record provides no discernible explanation of the motivation behind counsel’s

actions—whether those actions were of strategic design or the result of negligent

conduct.”). Therefore, considering trial counsel’s representation in its totality, we

conclude that appellant has failed to establish the first prong of Strickland. See 466 U.S.

at 687, 104 S. Ct. at 2064; Lopez, 343 S.W.3d at 142; Thompson, 9 S.W.3d at 813. And

because we have concluded that appellant failed to establish the first prong of

Strickland, we need not address the second prong. See Thompson, 9 S.W.3d at 813-14; see

also Gomez v. State, No. 08-10-00276-CR, 2012 Tex. App. LEXIS 1013, at *16 (Tex. App.—

El Paso Feb. 8, 2012, no pet.) (not designated for publication) (“If an appellant fails to

satisfy his burden under the first Strickland prong, there is no need to address the

second.”). Accordingly, we overrule appellant’s fourth issue.

VII. CONCLUSION

Having overruled all of appellant’s issues, we affirm the judgment of the trial

court.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 13, 2014
Do not publish
[CRPM]

Oliver v. State Page 28