Opinion issued March 20, 2014.
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-13-00114-CR AND 01-13-00115-CR
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BRIAN BRIGGS BAXTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 253rd District Court
Chambers County, Texas
Trial Court Case No. 16388
MEMORANDUM OPINION
Brian Baxter pleaded not guilty to two counts of aggravated sexual assault of
a child under the age of six, a first-degree felony offense. See TEX. PENAL CODE
ANN. § 22.021(f) (West Supp. 2013). The trial court consolidated the counts into
one proceeding and, following a seven-day trial, the jury returned a guilty verdict
on both charges. The jury assessed punishment at sixty-five years’ confinement
and imposed a $10,000 fine on each count. The trial court directed that the
sentences run concurrently.
On appeal, Baxter contends that insufficient evidence supports the jury’s
guilty verdict and that he was denied effective assistance of counsel in violation of
his constitutional rights. We affirm.
Background
A girl was practicing for a pre-school performance when she touched
another female student between her legs. The student ran away from the girl and
reported to their teacher that the girl had touched her inappropriately. The teacher
took the girl aside and asked why she did that; the girl responded, “Because that’s
what my mama and daddy do to me.” The teacher asked the girl what she meant,
and the girl responded that Baxter, her father, “sticks his tee-tee in her tu-tu.” The
teacher asked the girl for clarification about each parent’s conduct. The girl told
the teacher that Baxter assaulted her when her mother went to the grocery store or
was sleeping. The girl explained that her mother did not touch her that way, but
that her mother knew about Baxter’s conduct and was very angry with him. The
mother also told the girl that she was disappointed in her. The girl complained of
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burning and pain in her vaginal area. The girl was four or five years old at the
time.
The teacher took the girl to the nurse’s office while the school contacted
Child Protective Services (CPS). After her interview with CPS, Deputy D.
Rabalais of the Chambers County Sheriff’s Office, accompanied by a female
employee of the Sheriff’s Office, transported the girl to Child Abuse and Forensic
Services, a nonprofit facility that performs sexual assault examinations and
evidence collection. Brenda Garison, a certified sexual assault nurse examiner
(SANE) with nearly twenty years of experience, examined the girl. During the
examination, the girl told Garison, “My daddy, he hurt my private really bad.” The
girl became anxious when she saw that Garison had a camera, saying, “You’re not
going to take a picture of my private, are you? . . . I don’t want you to take a
picture. . . . People will laugh.” Garison asked the girl if anyone had ever taken a
picture of her private. The girl responded, “my daddy.” The examination showed
trauma to the genital area.
At trial, the girl testified that she told her teacher that Baxter put his penis in
her vagina. The girl described one assault that took place while she was doing her
homework. She testified that Baxter assaulted her two times, but that she could not
remember the other time.
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Dr. Alvarez-Sanders, who holds a doctoral degree in clinical psychology,
also testified for the State. She provides individual counseling and performs
psychological evaluations. A substantial portion of her work involves treatment
and evaluation of children and adolescents; about half of them are in CPS custody
and have histories of neglect, physical abuse, or sexual abuse.
Dr. Alvarez-Sanders evaluated the girl twice, once in 2010 and again in
2012. Both times, she diagnosed the girl with post-traumatic stress disorder
(PTSD) consistent with the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV). The DSM-IV is published by the American Psychiatric Association
and provides standard classification of mental disorders for the use of mental
health professionals in the United States. Dr. Alvarez-Sanders explained that the
inability to recall specific aspects of a trauma is one of the constellation of
symptoms that support a diagnosis of PTSD, and it is one of the symptom that she
identified in the girl.
Discussion
I. Evidentiary Sufficiency
A. Standard of review
We review evidentiary sufficiency challenges under the Jackson v. Virginia
standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a
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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.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781, (1979)). Under this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Viewed in the light most favorable to the verdict, the evidence is insufficient
when either: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense; or (2) the evidence conclusively
establishes a reasonable doubt. See Laster, 275 S.W.3d at 518. This standard
applies equally to both direct and circumstantial evidence. King v. State, 895
S.W.2d 701, 703 (Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d).
We do not weigh any evidence or evaluate the credibility of any witnesses,
as this was the function of the factfinder. Williams, 235 S.W.3d at 750. Instead,
we determine whether both the explicit and implicit findings of the factfinder are
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rational by viewing all the evidence admitted at trial in the light most favorable to
the verdict and resolving any inconsistencies in the evidence in favor of the
verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).
B. Analysis
A person commits aggravated sexual assault of a child when he intentionally
and knowingly causes the penetration of the sexual organ of a child. TEX. PENAL
CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2013).1 Baxter
acknowledges, correctly, that the girl’s testimony, standing alone, is sufficient to
support his conviction for aggravated sexual assault of a child. See TEX. CODE
CRIM. PROC. ANN. § 38.07(b)(1) (West 2011); Bryant v. State, 340 S.W.3d 1, 14
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). He complains, however, that
the girl’s testimony was unreliable and insufficient to prove his guilt beyond a
reasonable doubt, pointing to evidence that the girl has memory problems and that
she occasionally tells lies.
The girl unequivocally testified that Baxter sexually assaulted her twice.
She described in detail one incident that occurred while she was awake and doing
1
A person who commits aggravated sexual assault of a child younger than fourteen
but older than six is subject to a five-year minimum term of imprisonment for this
first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B), &
(e) (West Supp. 2013). A person who commits aggravated sexual assault of a
child under six is subject to a twenty-five-year minimum term of imprisonment.
See TEX. PENAL CODE ANN. § 22.021(f)(1) (West Supp. 2013). The parties do not
dispute the girl’s age when the incidents occurred.
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her homework. In making the outcry to her preschool teacher, she used language
consistent with having been assaulted at least twice, explaining “my mama and
daddy do that to me when I’m asleep,” and that “my daddy touches me when my
mama goes to sleep or is at [the grocery store].” Courts give wide latitude to
testimony given by child victims of sexual abuse. See Villalon v. State, 791
S.W.2d 130, 134 (Tex. Crim. App. 1990) (stating that people cannot expect a child
victim to testify with same clarity and ability as mature, capable adults). The jury,
as the trier of fact, “is the sole judge of the credibility of the witnesses and of the
strength of the evidence,” and the jury may choose to believe or disbelieve any
portion of the witnesses’ testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.
Crim. App. 1999); Bargas v. State, 252 S.W.2d 876, 889 (Tex. App.—Houston
[14th Dist.] 2008, no pet.). Viewing the evidence in the light most favorable to the
verdict and resolving any inconsistencies in the verdict’s favor, we hold that
sufficient evidence supports the jury’s verdict finding Baxter guilty of two counts
of aggravated sexual assault of a child under six years of age.
In addition to challenging the girl’s testimony, Baxter also rejects as
unreliable—and therefore, no evidence—the testimony of Dr. Alvarez-Sanders in
which she opines that the girl suffered from PTSD as a result of having been
sexually abused. Dr. Alvarez-Sanders explained and applied the diagnostic criteria
set forth in the DSM-IV, a manual developed by the American Psychiatric
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Association and widely used in the mental health profession to diagnose mental
disorders. The Court of Criminal Appeals has recognized research concerning the
behavioral characteristics of sexually abused children as a legitimate field of
expertise. See Cohn v. State, 849 S.W.2d 817, 818–19 (Tex. Crim. App. 1993);
Duckett v. State, 797 S.W.2d 906, 914–17 (Tex. Crim. App. 1990); see also
Hernandez v. State, 53 S.W.3d 742, 751 (Tex. App.—Houston [1st Dist.] 2001,
pet. ref’d) (holding that social worker with many years of experience working with
sexually abused children was qualified to explain dynamics and common
characteristics of sexually abused children). Baxter waived any evidentiary
complaint about Dr. Alvarez-Sanders’s testimony. See Saldano v. State, 70
S.W.3d 873, 887 (Tex. Crim. App. 2002) (observing that it has consistently been
held that failure to object in timely and specific manner during trial forfeits
complaints about admissibility of evidence, even though the error may concern
defendant’s constitutional rights).
Baxter also complains that the testimony of Velma Fisher, a clinical social
worker who testified for the defense, lacks evidentiary value. Baxter, however,
may not complain about his own witness’s testimony on appeal. See Prystash v.
State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (explaining that “the law of
invited error estops a party from making an appellate error of an action it
induced”). In any event, neither witness’s testimony affects the sufficiency of the
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evidence as a whole such that no rational fact finder could have found that each
essential element of the charged offense was proven beyond a reasonable doubt.
The trial court correctly entered judgment on the jury’s verdict.
II. Ineffective Assistance of Counsel
In contending that his trial counsel rendered ineffective assistance, Baxter
claims that counsel failed to call certain witnesses and failed to adequately cross-
examine others. In addition, Baxter claims that he wanted to testify in his own
defense, but that his attorney did not call him to the stand. To prevail on an
ineffective-assistance-of-counsel claim, the defendant must show that (1) his
counsel’s performance was deficient and (2) a reasonable probability exists that the
result of the proceeding would have been different absent counsel’s error.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065 (1984); see
also Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A
defendant has the burden to establish both prongs by a preponderance of the
evidence; failure to make either showing defeats his ineffectiveness claim.
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). We apply a strong
presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999). We also presume that trial counsel’s actions were
reasonably professional and motivated by sound trial strategy. Jackson v. State,
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877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Johnson v. State, 176 S.W.3d 74, 78
(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
The record must firmly support a claim of ineffective assistance. Thompson,
9 S.W.3d at 813. Where the record does not offer an explanation for counsel’s actions,
we presume that counsel exercised reasonable professional judgment in making all
significant decisions. Jackson, 877 S.W.2d at 771; Broussard v. State, 68 S.W.3d
197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
“Direct appeal is usually an inadequate vehicle for raising such a claim
because the record is generally undeveloped.” Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). When the record does not reflect counsel’s
reasons for the challenged conduct, an appellate court will assume a strategic
motivation if any can possibly be imagined, and it will not conclude that the
challenged conduct constituted deficient performance unless the conduct was so
outrageous that no competent attorney would have engaged in it. Garcia v. State,
57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
The record does not contain any evidence to support Baxter’s contention that
his counsel failed to call witnesses that would have provided favorable testimony.
It does not identify the subject matter of the testimony that those prospective
witnesses would have provided, nor does it reveal the topics on which counsel
should have elicited testimony from the appearing witnesses. To show ineffective
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assistance of counsel on this ground, the defendant must demonstrate that the
potentially exculpatory witnesses “were available and [the defendant] would
benefit from their testimony.” Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.
App. 2010) (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983));
see Lair v. State, 265 S.W.3d 580, 594–95 (Tex. App —Houston [1st Dist.] 2008,
pet. ref’d) (counsel ineffective when he failed to investigate and call witnesses
where record included affidavits of twenty witnesses who were available and
willing to testify on defendant’s behalf). Further, the record lacks any explanation
from trial counsel for not pursuing the missing testimony. Absent evidence on
these issues, Baxter cannot meet his burden to show that counsel was ineffective.
As for counsel’s failure to call Baxter to testify in his own defense, nothing
in the record indicates that Baxter expressed a desire to testify, and Baxter does not
contend that he was uninformed or misled into believing that he was not allowed to
testify. Cf. Salinas v. State, 163 S.W.3d 734, 740–41 (Tex. Crim. App. 2005)
(counsel not ineffective where record does not reflect that defendant asserted his
right to testify and counsel failed to protect it). The record sheds no light on any
reason why counsel did not call Baxter to testify. As a result, Baxter has failed to
overcome the presumption that trial counsel acted within the wide range of
professional norms by not calling Baxter to the stand.
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Conclusion
We hold that sufficient evidence supports the jury’s verdict finding Baxter
guilty of both charged offenses. We further hold that Baxter failed to satisfy his
burden to demonstrate that he received ineffective assistance of counsel. We
therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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