IN THE
TENTH COURT OF APPEALS
No. 10-09-00058-CR
SAMMIE RAY HOLBERT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F40381
MEMORANDUM OPINION
A jury found Sammie Ray Holbert guilty of two counts of aggravated sexual
assault of a child and four counts of indecency with a child. The jury assessed his
punishment, enhanced by a prior felony conviction, at life imprisonment and a $10,000
fine for each count of aggravated sexual assault of a child and life imprisonment and a
$3,000 fine for each count of indecency with a child. The trial court ordered Holbert’s
sentences for counts one, two, and three to run consecutively and his sentences for
counts four, five, and six to run concurrently with his sentence for count one. In three
issues, Holbert appeals. We will affirm.
We begin with Holbert’s second and third issues in which he contends that the
evidence is legally and factually insufficient to support his convictions.
The court of criminal appeals recently held that there is “no meaningful
distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis
factual-sufficiency standard” and that “the Jackson v. Virginia legal-sufficiency standard
is the only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt. All other cases to the contrary, including
Clewis, are overruled.” Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).
Accordingly, we will apply the same standard of review to each of Holbert’s sufficiency
complaints.
When reviewing a challenge to the sufficiency of the evidence to establish the
elements of a penal offense, we must determine whether, after viewing all the evidence
in the light most favorable to the verdict, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if
the finding of the trier of fact is rational by viewing all of the evidence admitted at trial
in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.
Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor
of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Holbert v. State Page 2
Section 22.021(a) of the penal code provides, in relevant part, that a person
commits the offense of aggravated sexual assault of a child if he intentionally or
knowingly “causes the sexual organ of a child to contact . . . the . . . sexual organ of
another person, including the actor,” and the victim is younger than fourteen years of
age. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp. 2010). Section
21.11(a) provides, in relevant part, that a person commits the offense of indecency with
a child if he engages in sexual contact with a child younger than seventeen years of age
who is not his spouse. Id. § 21.11(a)(1), (b-1) (Vernon Supp. 2010). “Sexual contact”
means “any touching by a person, including touching through clothing, of the anus,
breast, or any part of the genitals of a child” “if committed with the intent to arouse or
gratify the sexual desire of any person.” Id. § 21.11(c)(1). The requisite specific intent to
arouse or gratify the sexual desire of any person can be inferred from the defendant’s
conduct, remarks, and all surrounding circumstances. Breckenridge v. State, 40 S.W.3d
118, 128 (Tex. App.—San Antonio 2000, pet. ref’d) (citing McKenzie v. State, 617 S.W.2d
211, 216 (Tex. Crim. App. [Panel Op.] 1981)). A child victim’s testimony alone is
sufficient to support a conviction for aggravated sexual assault of a child or indecency
with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (Vernon 2005); Abbott v. State, 196
S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d); Tear v. State, 74 S.W.3d 555, 560
(Tex. App.—Dallas 2002, pet. ref’d).
To prove counts one and two as set forth in the charge, the State was required to
establish beyond a reasonable doubt that, on or about November 1, 2005, and December
1, 2005, in Johnson County, Texas, Holbert “intentionally or knowingly cause[d] the
Holbert v. State Page 3
sexual organ of [M.S.], a child who was then and there younger than 14 years of age and
not the spouse of the defendant, to contact the sexual organ of the defendant.” To
prove counts three and four as set forth in the charge, the State was required to establish
beyond a reasonable doubt that, on or about November 1, 2005, and December 1, 2005,
in Johnson County, Texas, Holbert “intentionally or knowingly, with the intent to
arouse or gratify the sexual desire of said defendant, engage[d] in sexual contact by
touching any part of the genitals of [M.S.], a child younger than 17 years of age and not
the spouse of the defendant.” To prove counts five and six as set forth in the charge, the
State was required to establish beyond a reasonable doubt that, on or about November
1, 2005, and December 1, 2005, in Johnson County, Texas, Holbert “intentionally or
knowingly, with the intent to arouse or gratify the sexual desire of said defendant,
engage[d] in sexual contact with [M.S.], a child younger than 17 years of age and not the
spouse of the defendant, by touching the breast of [M.S.].”
M.S. testified that her mother began dating Holbert in August 2005. Shortly
thereafter, Holbert and her mother married, and he moved into their home in Cleburne.
One day at the beginning of November 2005, about a month after Holbert had moved
in, M.S. found herself alone in the house with Holbert. Holbert offered to give M.S. a
massage in his bedroom. At first, Holbert massaged M.S.’s shoulders and feet, but then,
he began working his hand up her leg and touched her vagina with his fingers. M.S.
was “frozen and speechless.” Holbert then touched her breasts with his hands, and
Holbert and M.S. then had sexual intercourse. M.S. stated that, during November and
December 2005, they had sexual intercourse six or more times and that he touched her
Holbert v. State Page 4
vagina and breasts with his hand on more than one occasion. Throughout this time,
M.S. was only twelve years old.
M.S.’s mother testified that in May 2006, she and M.S. had a conversation in
which M.S. told her that Holbert “had gave [sic] her a shoulder rub and that they were
having sex in my bedroom.” M.S. also told her that Holbert “would rub on her
breasts.” Donna Wright, a pediatric nurse practitioner and nurse manager for the
Child Advocacy Resource and Evaluation Team (the CARE Team) at Cook Children’s
Medical Center in Fort Worth, testified that she then examined M.S. in June 2006. M.S.
told her that when she was twelve years old, Holbert had had sex with her in her
mom’s room while her mom was at work. M.S. also stated that Holbert had “rubbed on
her vagina” and touched or fondled her breasts. She said that it happened six times, the
last time being in December 2005.
Holbert testified that he believed M.S.’s mother had called on one occasion and
he told her that he was going to rub some Aspercreme on M.S.’s shoulder because she
had hurt it but that he had never had any sexual contact with M.S. He stated that it was
“impossible” to be alone with any child in the house because there were so many
people living there. He said that he has children and thus would never do anything to
hurt a child. He also has a family that he loves very much and would never do
anything like this to shame his or his family’s name.
Holbert argues that the evidence is insufficient because “[t]he record is
completely devoid of any sufficient details regarding any of the allegation [sic] to which
the Appellant is charged” and “[a]ny testimony regarding this incident is contradicted
Holbert v. State Page 5
by statements elsewhere in the record such as whether or not other persons were
present in the home, lotions being used or not used, [and] where and when any of these
crimes allegedly occurred.” By finding Holbert guilty, the jury obviously believed
M.S.’s testimony and did not believe Holbert’s testimony. The jury is the exclusive
judge of the facts, the credibility of the witnesses, and the weight to be given to the
witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App.
1981)). A jury may believe all, some, or none of any witness’s testimony. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986). As the reviewing court, we “should not
substantially intrude upon the jury’s role as the sole judge of the weight and credibility
of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); see
also Sharp, 707 S.W.2d at 614. We must defer to the jury’s determination concerning
what weight to give the contradictory testimonial evidence. See, e.g., In re A.B., 133
S.W.3d 869, 873-74 (Tex. App.—Dallas 2004, no pet.); Scugoza v. State, 949 S.W.2d 360,
362-63 (Tex. App.—San Antonio 1997, no pet.); Fetterolf v. State, 782 S.W.2d 927, 933
(Tex. App.—Houston [14th Dist.] 1989, pet. ref’d).
Viewing all the evidence in the light most favorable to the verdict, we conclude
that the evidence is sufficient to support Holbert’s convictions. We overrule Holbert’s
second and third issues.
We now turn to Holbert’s first issue, in which he contends that he did not receive
effective assistance of counsel as guaranteed by the United States and Texas
constitutions.
Holbert v. State Page 6
To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.
Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535,
156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.
2005) (same). Under Strickland, the appellant must prove by a preponderance of the
evidence that (1) counsel’s performance was deficient, and (2) the defense was
prejudiced by counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at
2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent
both showings, an appellate court cannot conclude the conviction resulted from a
breakdown in the adversarial process that renders the result unreliable. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
The appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel. Id. There is a
strong presumption that counsel’s actions and decisions were reasonably professional
and motivated by sound trial strategy. See Salinas v. State, 163 S.W.3d 734, 740 (Tex.
Crim. App. 2005); Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d). To overcome the presumption of reasonably professional assistance,
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 813.
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.) (citing
Holbert v. State Page 7
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). 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).
Holbert first claims that his trial counsel provided ineffective assistance because
he introduced into evidence letters that M.S.’s mother had written to Holbert while
Holbert was confined in the county jail before trial. During his cross-examination of
M.S.’s mother, defense counsel introduced the letters and highlighted the fact that,
throughout the letters, M.S.’s mother repeatedly asks for a divorce but made only one
brief reference in one letter about the allegations in this case. However, when defense
counsel asked M.S.’s mother why she never addressed the allegations in the letters, she
stated that a caseworker at the Child Advocacy Center told her not to talk about it. On
redirect, the State then pointed to several portions of the letters, and M.S.’s mother
explained that they were subtle references to the allegations. The State also asked
M.S.’s mother what she meant when she wrote, “I was your wife and you had came
[sic] to me and talked about things that your mother did to you.” M.S.’s mother replied
that Holbert made the inference to her that he had been sexually molested by his
mother.
Holbert argues that there could have been no reasonable trial strategy for
introducing the letters because they contain highly prejudicial statements that bolstered
the case against him, opened the door to extraneous acts that would otherwise be
inadmissible, set him up for impeachment by the State, and diminished his credibility in
Holbert v. State Page 8
front of the jury. Defense counsel indicated in his opening statement that he intended
to introduce evidence, including the letters, that suggested that the allegations against
Holbert were “concocted.” When we look at the record as a whole, we cannot conclude
that no reasonable attorney would have adopted this strategy. Without additional
evidence regarding trial counsel’s strategic intent, we must presume that trial counsel
introduced the letters as part of a valid trial strategy. See Salinas, 163 S.W.3d at 740;
Gamble, 916 S.W.2d at 93.
Second, Holbert claims that his trial counsel provided ineffective assistance
because he failed to object and to request a limiting instruction when: (1) M.S. testified
during the State’s direct examination of her that she and Holbert had engaged in oral
sex on a few occasions; (2) the State impeached Holbert’s credibility by questioning him
about the details of his prior convictions, including the prior felony used to enhance
punishment; and (3) the State questioned Holbert during its cross-examination of him
about having eight children with six different women out of wedlock. But the record is
silent as to defense counsel’s reasons for not objecting to this testimony. Without such
evidence, we must conclude that Holbert has not overcome the presumption that
counsel’s actions and decisions were reasonably professional and motivated by sound
trial strategy. See Salinas, 163 S.W.3d at 740; Stults, 23 S.W.3d at 208.
Third, Holbert claims that his trial counsel provided ineffective assistance
because he failed to object to the following prejudicial hearsay evidence introduced by
the State: (1) a Valentine’s Day card/letter that M.S.’s mother testified was written by
Holbert to M.S.; (2) another Valentine’s Day card/letter that M.S. testified was written
Holbert v. State Page 9
by Holbert to her; and (3) Detective Don Beeson’s testimony concerning statements M.S.
made during the forensic interview at the Child Advocacy Center. The Valentine’s Day
cards/letters written by Holbert were not hearsay because they were admissions by a
party-opponent. See TEX. R. EVID. 801(e)(2)(A); Trevino v. State, 991 S.W.2d 849, 853 (Tex.
Crim. App. 1999). Furthermore, Holbert has provided no evidence regarding defense
counsel’s reasons for not objecting to any of this testimony. Without such evidence, we
are unable to conclude that trial counsel’s performance was deficient. See Salinas, 163
S.W.3d at 740; Gamble, 916 S.W.2d at 93.
Fourth, Holbert claims that his trial counsel provided ineffective assistance
because he failed to elicit testimony to rebut or explain medical evidence offered by the
State regarding a sexually transmitted disease of the alleged victim, and, fifth, Holbert
claims that his trial counsel provided ineffective assistance because he failed to
adequately make an offer of proof regarding a defensive theory of the case. However,
the record is again silent as to defense counsel’s reasons for his actions and decisions.
To conclude that trial counsel was ineffective based on either of these asserted grounds
would call for speculation, which we will not do. See Jackson, 877 S.W.2d at 771; Gamble,
916 S.W.2d at 93. Without such evidence, we must conclude that Holbert has not
overcome the presumption that counsel’s decision to not elicit testimony about the
victim’s past sexual behavior was reasonably professional and motivated by sound trial
strategy. See Salinas, 163 S.W.3d at 740; Gamble, 916 S.W.2d at 93.
Lastly, Holbert claims that his trial counsel provided ineffective assistance
because he “continually demonstrated a lack of knowledge and understanding of the
Holbert v. State Page 10
law.” Specifically, Holbert points out that on several occasions after the State made an
objection that the trial court sustained, his counsel asked the court to “note our
exception” and then requested a mistrial, which was denied. Holbert also states that his
counsel’s request for a directed verdict was untimely. Again, the record is silent as to
defense counsel’s reasons for his actions and decisions; therefore, we are unable to
conclude that trial counsel’s performance was deficient. See Salinas, 163 S.W.3d at 740;
Gamble, 916 S.W.2d at 93. Furthermore, we have already concluded that the evidence is
sufficient to support Holbert’s convictions; thus, there is no evidence in the record that
Holbert’s defense was prejudiced by these actions by counsel. See Williams v. State, 937
S.W.2d 479, 482 (Tex. Crim. App. 1996) (stating that appellate issue complaining of trial
court’s failure to grant motion for directed verdict is treated as challenge to legal
sufficiency of evidence).
We overrule Holbert’s first issue and affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 4, 2011
Do not publish
[CRPM]
Holbert v. State Page 11