PD-0140-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/26/2015 4:06:48 PM
Accepted 3/27/2015 8:10:47 AM
ABEL ACOSTA
CLERK
PDR No. PD-0140-15
In The Court of Criminal Appeals of Texas
JUAN GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee.
MOTION FOR REHEARING
From Appellant's Petition for Discretionary Review
In Accordance With The Texas Rules Of Appellate Procedure, Rule 79,
From the Court of Appeals for the Thirteenth District of Texas,
Appeal Nos. 13-13-00014-CR,
On Appeal from the 130th Judicial District Court
of Matagorda County Texas,
Cause Nos. 12-112.
MOTION FOR REHEARING
FROM PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, JUAN GARCIA
Oral Argument Requested
Cary M. Faden & Jerome J. Aldrich
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Telephone: (281) 491-6182
Texas Bar No. 06768725
E-MAIL: caryfadengaol.com
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P., Rule 38.1(a) and Rule 68.4(a), appellant certifies
that the following is a complete list of the parties to the final judgment and the names
and addresses of counsel in the trial and on appeal:
Appellant:
Juan Garcia
Counsel for Appellant:
James M. Sims (at trial)
440 Louisiana Street, Suite 200
Houston, Texas 77002
Charles Martinez, III
2233 Avenue G
Bay City, Texas 77414
JEROME J. ALDRICH (on appeal)
122 Westway, Suite 316
Lake Jackson, Texas 77566
CARY M. FADEN (on appeal)
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Counsel for the State of Texas:
Steven Reis
Lindsay Deshotels
Matagorda County, Texas
District Attorney
1700 7th Street, Room 325
Bay City, Texas 77414
Trial Judge:
Craig Estlinbaum
it
Table of Contents
Index of Authorities iv
Statement Regarding Oral Argument
Statement ofthe Case
Procedural History of the Case
Ground for Rehearing 2
GROUND FOR REHEARING
THE THIRTEENTH COURT'S OPINION IN FAILING TO FIND
TRIAL COUNSEL INEFFECTIVE IS SO EGREGIOUS IT
SIMPLY CAN NOT REPRESENT THE STATE OF THE LAW ON
INEFFECTIVE ASSISTANCE OF COUNSEL AS PRONOUNCED,
PURSUANT TO STRICKLAND V WASHINGTON.
Argument And Authorities In Support Of Motion For
Rehearing
Prayer for Relief 12
Certificate of Service 14
Appendix-Thirteenth Court Of Appeals Opinion
iii
INDEX OF AUTHORITIES
CASES:
Ex parte Bowman, S.W.3d_, No. 01-13-01045, 2014 Tex. App. LEXIS 9458 (Tex.
App. - Houston [1st Dist.] Aug. 26, 2014) 5
Ex parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990) 6
Ex parte Briggs,I87 S.W.3d 458 (Tex. Crim. App. 2005) 11
Hill y. Lockhart, 474 U.S. 52, 59-60, 106 S. Ct. 366, 88 L.Ed2d 203 (1985) 11
Jackson y. State, 766 S.W.2d 504, 510 (Tex. Crim. App. 1985) 9
Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) 9,10
Strickland v. Washington. 466 U.S. 668, 687, 80 L Ed. 2d 674, 104 S. Ct. 2052
(1984) 2,6,8,9
Wiggins v. Smith,539U .S.510,521,123 S.Ct. 2527, 2535 (2003). 6,7
Williams v. Taylor, 529 U.S. 362,397-97, 120 S. Ct. 1495 (2000) 9
Wright v. State, 223 S.W.3d 36 (Houston [1stDist.] 2006, pet. ref d) 10
STATUES, CODES, AND RULES:
Tex. R. App. P. 68.4(c)
Tex. R. App. P. 79.2(c) 2,3,13
iv
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 68.4(c), counsel respectfully requests oral
argument. Oral argument would be helpful in the event this Motion For Rehearing
is granted. This appeal involves questions of law, questions of fact, public policy and
procedure which cannot be adequately addressed, analyzed and evaluated through
written communication alone. Oral argument is essential to emphasize the unique
characteristics of these questions and to address the unforeseeable exigencies arising
during the Court's consideration of this appeal.
STATEMENT OF THE CASE
On March 27, 2012, Appellant, was indicted for the first degree felony offense
of aggravated sexual assault. (1 CR at 2). The offense was alleged to have occurred
on or about June 1, 2001. (1 CR at 2). On November 13, 2012, Appellant pleaded not
guilty to the indictment. (2 RR at 126). After a jury trial, the jury assessed Appellant's
punishment at confinement in the Texas Department of Criminal Justice-Institutional
Division for a period of ninety-nine years, with a $0.00 fine. (1 CR at 132-133). On
December 11, 2012, Appellant timely filed his notice of appeal. (1 CR at 128).
PROCEDURAL HISTORY OF THE CASE
On December 18, 2014, the Thirteenth Court of Appeals affirmed Appellant's
convictions. Garcia v. State, No. 13-13-00014-CR, slip op. at 1-14 (Tex. App.—
Corpus Christi-Edinburg [13th Dist.], December 18, 2014, pet. pending). On January
5, 2015, Appellant timely filed his motion for rehearing. The Thirteenth Court Of
Appeals overruled and denied Appellant's Motion For Rehearing on January 9, 2015.
On February 3, 2015, Appellant timely filed this Petition For Discretionary Review
with the Clerk of the Court Of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2. This
Court refused Appellant's Petition For Discretionary Review on March 18, 2015.
vi
PDR No. PD-0140-15
In The Court of Criminal Appeals of Texas
JUAN GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee.
MOTION FOR REHEARING
From Appellant's Petition for Discretionary Review
In Accordance With The Texas Rules Of Appellate Procedure, Rule 79,
From the Court of Appeals for the Thirteenth District of Texas,
Appeal Nos. 13-13-00014-CR,
On Appeal from the 130th Judicial District Court
of Matagorda County Texas,
Cause Nos. 12-112.
MOTION FOR REHEARING
FROM PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, JUAN GARCIA
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW Appellant, Juan Garcia, by and through his attorneys of record,
Cary M. Faden and Jerome J. Aldrich, and files this Motion For Rehearing from the
petition for discretionary review of the December 18, 2014 and refused on March 18,
2015, from the decision of the Thirteenth Court of Appeals of Texas in Garcia v.
1
State, No. 13-13-00014-CR, slip op. at 1-14 (Tex. App. — Corpus Christi-Edinburg
[13th Dist], December 18, 2014, pet. pending); and would respectfully show the
Court following:
GROUND FOR REHEARING
THE THIRTEENTH COURT'S OPINION IN FAILING TO FIND
TRIAL COUNSEL INEFFECTIVE IS SO EGREGIOUS IT
SIMPLY CANNOT REPRESENT THE STATE OF THE LAW ON
INEFFECTIVE ASSISTANCE OF COUNSEL AS PRONOUNCED,
PURSUANT TO STRICKLAND V. WASHINGTON.
ARGUMENT AND AUTHORITIES IN SUPPORT OF
GROUND FOR REHEARING
In its December 18, 2014, opinion, the Thirteenth Court Of Appeals affirmed
Appellant's conviction in finding that trial counsel did not provide ineffective
assistance of counsel. The Thirteenth Court Of Appeals Opinion is so egregious it
simply put can not represent the state of the law as to ineffective assistance of counsel
in accordance with Strickland v. Washington, 466 U.S. 668, 687, 80 L Ed. 2d 674,
104 S. Ct. 2052 (1984).
This Court should GRANT this Motion For Rehearing because said Motion is
grounded on significant circumstances which are specifically specified in this Motion,
and this Motion is so grounded that this Motion is made in good faith and not for
delay. Tex. R. App. P. 79.2(c), and because the Thirteenth Court Of Appeals has so
2
far departed from the accepted and usual course of judicial proceedings, as to call for
an exercise of this Court's power of supervision.
The Thirteenth Court Of Appeals Opinion is so egregious and is so
dramatically ill conceived and drafted it failed to respond to Appellant's points of
error relevant to this appeal, and Appellant specifically points to certain arguments
that the Thirteenth Court failed to address:
-Failure to consider Sergeant Brown's incorrect testimony in regards to the first
time G.D. went to the Matagorda County Sheriffs Office. Sergeant Brown testified
the first time G.D. went to the Matagorda County Sheriffs Office was in 2011, and
Sergeant Brown did not tell the jury about G.D.'s visit to the Sheriffs Office on
February 14, 2003, where no sexual assault allegation was raised by G.D. This visit
was after the date of offense of June 1, 2001, alleged in the indictment. (See Page 3
of Appellant's Brief). Therefore, this is an important reasonable doubt issue that was
not presented to the jury through effective cross examination of Sergeant Brown or
G.D. It is important because G.D. had the opportunity to make an outcry and did not.
-Failure to address the fact that G.D. made no outcry of sexual assault
regarding the alleged June 1, 2001, event, until G.D. was told by the Matagorda
County Sheriffs Office that no crime had been committed by Appellant in January
of 2011, during G.D.'s visit to the Matagorda County Sheriffs Office in January of
3
2011. This would have shown the jury the allegation of sexual assault was fabricated.
Therefore, this important reasonable doubt issue was not presented to the jury through
effective cross examination of Sergeant Brown or G.D. (See Page 5 of Appellant's
Brief).
-Trial Attorney, Martinez was not aware of any Texas Department of Family
and Protective Services, hereinafter referred to as (CPS), records being destroyed
because the allegations were unfounded. Therefore, this important reasonable doubt
issue was not presented to the jury through effective cross examination of Sergeant
Brown and G.D., or by calling defense witnesses from CPS. (See Page 8 of
Appellant's Brief).
-Trial Attorney, Sims admitted that the record retention and destruction policy
of CPS dealing with invalid and unfounded cases could have been something the jury
should have heard about. Therefore, this important reasonable doubt issue was not
presented to the jury through effective cross examination, or by calling defense
witnesses from CPS. (See Page 11 of Appellant's Brief).
-Trial Attorney, Sims also did not subpoena any witness from CPS to testify
about their record retention policy because Sims did not see any probative value in
that even though later Sims admitted the jury should have heard the CPS record
retention policy is that records are destroyed if a case is unfounded and invalid. (1
4
MNT at 88-90). This is critical because from the Matagorda County Sheriff's Office
report from G.D.'s visit in 2003, we know that a report of alleged abuse (non-sexual),
was made to CPS and given a case number. If G.D. had made an outcry of a sexual
abuse claim certainly this would have been investigated. We now know that any
records have been destroyed because the allegations were unfounded or invalid. The
fact that the records are destroyed in invalid or unfounded cases, is an important fact
that the jury should have considered and this Court did not consider, nor did this
Court consider that Sims did not subpoena a CPS witness to testify at trial. SEE
(Texas Department of Family And Protective Services (C.P.S.) letter in 1 MNT
Exhibit 5, dated December 14, 2012), (1 MNT at 89-92). This shows a complete lack
of investigation and failure to call a defense witness, either from CPS or the
Matagorda County Sheriff's Office, and failure to effectively cross examine Sergeant
Charlotte Brown from the Matagorda County Sheriff's Department or G.D. (See Page
12 of Appellant's Brief).
In the Ex parte Bowman, _ S.W.3d No. 01-13-01045, 2014 Tex. App.
LEXIS 9458 (Tex. App. - Houston [1st Dist.] Aug. 26, 2014), case he was deprived
of effective assistance of counsel because trial counsel failed to conduct a reasonable
pre-trial investigation that would have uncovered readily available evidence to
impeach the credibility of the arresting officer where his credibility was critical.
5
G.D.'s credibility was critical in this case.
Trial counsel has a duty to make an independent investigation of the facts of
a case. Ex parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App, 1990). The United
States Supreme Court has explained that "` [s]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.'" Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527,
2535 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066). "In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary." Wright v. St ate, 223 S.W.
3d 36, 42 (Tex. App. - Houston [1st Dist.] 2006, pct. ref d) (citing Wiggins, 539 U.S.
at 521-22, 123 S.Ct. at 2535). We assess a particular decision not to investigate "for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel's judgments." Id. (citing Wiggins, 539 U.S. at 521-22, 123 S.Ct. 2535).
-This is a case in which there was no physical evidence. Sims failed to question
G.D. about her first visit to the Sheriffs Office in February of 2003, and why she did
not report the alleged abuse, nor what G.D. told CPS regarding the alleged abuse.
(See Page 13 of Appellant's Brief). All of the above would have raised a reasonable
6
doubt with the jury, and Appellant would have been found not guilty.
-Further, trial attorney, Sims failed to raise a reasonable doubt with the jury by
presenting defense witnesses such as the now District Attorney Investigator Susan
Maxwell, who at the time investigated G.D.'s visit to the Matagorda County Sheriff s
Office in 2003. Susan Maxwell would have testified that no sexual abuse was alleged
by G.D. during her February 2003, visit to the Matagorda County Sheriffs Office,
because the offense report from then showed no sexual abuse alleged. (1 MNT at
Exhibit 2), (Texas Department Of Family And Protective Services (C.P.S.) letter
dated December 14, 2012; 1 MNT at Exhibit 5, and 28 page letter of Claudia), (1
MNT at Exhibit "8").
The Defendant asserted that he was denied effective assistance of counsel by
trial counsel's failure to present defense witnesses that support a defense that the
allegations against him were fabricated and by not effectively cross examining the
State's witnesses. The Defendant further asserted that a strategic decision made by
trial counsel was unreasonable to not call any witnesses in light of the relationship
described by the Defendant's family between the Defendant and his step daughter the
complainant. Trial counsel never inquired or received information that the
complainant fabricated the allegations by the use of Texas Department Of Family
And Protective Services (C.P.S.), records or witnesses and Crisis Center therapy
7
records or witnesses, and failed to present the inconsistencies to the jury.
Additionally, it was unreasonable to not question on cross examination or by calling
defense witnesses that the Sheriffs Office report from February 14, 2003 shows
Giovanna and Sergio went there complaining of visitation issues with Claudia and
mosquito bite issues on Giovanna's arms, but never made a sexual abuse claim even
though Giovanna had opportunity to tell someone in authority. (1 MNT at Exhibit 2),
(Texas Department Of Family And Protective Services (C .P. S.) letter dated December
14, 2012; 1 MNT at Exhibit 5, and 28 page letter of Claudia), (1 MNT at Exhibit "8").
Trial counsel did not present testimony from family members concerning the
reasons why Giovanna would be vindictive toward him and therefore would present
false allegations of abuse. Based on the Supreme Court's decision in Strickland v.
Washington, 466 U.S. 668, 687, 80 L Ed. 2d 674, 104 S. Ct. 2052 (1984), the
Defendant was denied effective assistance of counsel based on trial counsel's failure
to obtain the assistance of an expert witness to assist in the preparation of a defense,
to cross examine both the complainant and her mother, to put the "outcry" in proper
context and to explain the problems with the State's investigation.
The question becomes whether counsel's deficient performance undermined
confidence in the outcome of the trial. See Strickland, 466 U.S. at 694. "[Courts of
appeal] evaluate the totality of the evidence-- 'both that adduced at trial, and the
8
evidence adduced in the habeas proceedinesli" Williams v. Taylor, 529 U.S. 362,
397-97, 120 S. Ct. 1495 (2000). The Court stated, though, that it "made no new law"
in Williams, but had simply applied Strickland to conclude that "counsel's failure to
uncover and present voluminous mitigating evidence at sentencing could not be
justified as a tactical decision..., because counsel had not "fulfill[ed] their obligation
to conduct a thorough investigation of the defendant's background." Id. at 2535
(quoting Williams, 529 U.S. at 396). The facts of the Appellant's case suggest that
without an explanation by an expert, the testimony of family members or an effective
cross exam of the State's witnesses that would explain the relationship between the
Defendant and his step daughter, trial counsel presented no defense to the charges
against the Defendant.(3 RR at 145).
A single egregious error may be so substantial that the trial record alone can
demonstrate ineffective assistance of counsel as a matter of law. Jackson v. State, 766
S.W.2d 504, 510 (Tex. Crim. App. 1985) ("We have also recognized that, as a
particular matter, some isolated omissions may so affect the outcome of a particular
case as to undermine the reliability of the proceedings.") In Lopez v. State, 343
S.W.3d 137 (Tex. Crim. App. 2011) this Court reversed the court of appeal's
judgment reversing Lopez's conviction on the basis that he received ineffective
assistance of counsel. However, the analysis in Lopez is instructive in the present
9
case. The Lopez court stated:
In the rare case in, which trial counsel's ineffectiveness is
apparent from the record, an appellate court may address and dispose of
the claim on direct appeal. Allowing this disposition alleviates the
unnecessary judicial redundancy and burden on the trial courts of
holding additional hearings in writ applications when no additional
evidence is necessary to the ultimate disposition of the case. However,
this is a difficult hurdle to overcome: the record must demonstrate that
counsel's performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy
could justify trial counsel's acts or omissions, regardless of his or her
subjective reasoning.
Id. at 143.
The above shows, (1) counsel's performance fell below an objective standard
of reasonableness, (2) counsel's deficient performance prejudiced the defense,
resulting in an unreliable or fundamentally unfair outcome of the proceeding, (3)
counsel's actions could not be considered sound trial strategy, (4) a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. The jury would have found Appellant not guilty.
As this Court has noted, the ability of accused to hire an expert is irrelevant to
the duty of attorney to investigate the facts and consult with an expert when needed.
Further, this Court cannot distinguish Wright from the instance case. Thus, when no
defense is presented and there is no evidence corroborating the complainant's stories,
there is a reasonable probability, sufficient to undermine the confidence in the
10
outcome of the case, that but for the deficient performance of trial counsel, the result
of the proceedings would have been different. See Briggs, 187 S.W.3d at 470
(quoting Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S. Ct. 366, 88 L.Ed2d 203 (1985)).
A new trial is required.
Appellant files this his Motion For Rehearing due to the fact that the Thirteenth
Court, after having granted Oral Argument drafted an Opinion that is so egregious
and ill conceived it has wholly rejected all of Appellant's arguments, and refused to
directly address the merits of Appellant's appeal, and refused to address the
overwhelming merits of Appellant's appeal, that trial counsel was wholly ineffective
and Appellant was denied effective assistance of counsel for failing to effectively
cross examine witnesses or call defense witnesses or consult with any expert witness
or review scientific literature concerning false allegations of sexual abuse; have any
strategic reason or trial strategy in not calling any witnesses or interviewing any
witness in view of Appellant's relationship between Appellant and his step daughter
the complainant; investigate potential witnesses in the guilt innocence phase or the
punishment phase of trial; or to call witnesses to testify during the punishment stage
of Appellant's trial. That Appellant was denied effective assistance of counsel based
upon trial counsel's failure to: raise a reasonable doubt with the jury by presenting
defense witnesses or by effectively cross examining the State's witnesses and counsel
11
was poorly prepared for cross examination. Appellant is in complete dispute with the
Thirteenth Court's opinion issued and requests that this Court consider this Motion
For Rehearing. The Court Of Appeals lack of cited case law has departed from the
accepted and usual course of judicial proceedings and the case law cited by Appellant
in his Motion For Rehearing, as to call for an exercise of this Court's power of
supervision.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant Juan Garcia, prays that
the Court grant this Motion For Rehearing for Appellant, order briefing on this cause,
and set it for submission at the earliest possible date. Moreover, upon submission and
review of the appellate record and the briefs and arguments of counsel, the Court
issue an opinion resolving this conflict so that the bench and bar of this state will
know how to address and dispose of similar issues in the future.
Respectfully submitted,
/s/CARY M. FADEN
Cary M. Faden
SBN 06768725
Jerome J. Aldrich
SBN 00983500
Counsel for Appellant
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Telephone: (281) 491-6182
12
Facsimile: (281) 491-0049
E-Mail: caryfaden@aol.com
Attorney For Appellant
CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 79.2(c)
In accordance with TEX. R. APP. P. 79.2(c), I Cary M. Faden, certify that this
Motion For Rehearing that refuses Appellant's Petition For Discretionary Review is
grounded only on substantial intervening circumstances or on other significant
circumstances which are specified in the Motion. I further certify that this Motion is
so grounded and that the Motion is made in good faith and not for delay.
/s/CARY M. FADEN
Cary M. Faden
CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)
In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this
is a computer generated document and I state that the number of words in this
document is approximately 3,737 words. I am relying on the word count of the
computer program used to prepare this document.
/s/CARY M. FADEN
Cary M. Faden
13
CERTIFICATE OF SERVICE
In accordance with Tex. R. App. P. 9.5,1, Cary M. Faden, certify that a true and
correct copy of the foregoing Motion For Rehearing has been served, by U.S. Mail,
upon Juan Garcia; to the attorney for the State Of Texas, Steven E. Reis, District
Attorney, Appellate Division, 1700 7th Street, Room 325, Bay City, Texas 77414; to
the State Of Texas Prosecuting Attorney, Lisa C. McMinn, P.O. Box 13046, Capitol
Station, Austin, Texas 78711 on this the 26th day of March, 2015.
/s/CARY M. FADEN
Cary M. Faden
14
APPENDIX
15
THE THIRTEENTH COURT OF APPEALS
13-13-00014-CR
JUAN GARCIA
v.
THE STATE OF TEXAS
On appeal from the
130th District Court of Matagorda County, Texas
Trial Cause No. 12-112
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
December 18, 2014.
• ,,,,,, ••
NUMBER 13-13-00014-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 130th District Court
of Matagorda County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Juan Garcia appeals his conviction for the offense of aggravated sexual
assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw
through 2013 3d C.S.). A jury found appellant guilty and assessed punishment at ninety-
nine years' confinement in the Texas Department of Corrections, Institutional Division.
By four issues, which we construe as one, appellant contends that he was denied effective
assistance of counsel. Specifically, appellant asserts that his counsel failed to: (1)
conduct a reasonable investigation and call witnesses during the trial and punishment
phases; (2) consult with an expert witness or review scientific literature concerning false
allegations of sexual abuse; (3) effectively cross-examine the State's witnesses; and (4)
object or seek a continuance when the State called an undesignated witness during the
punishment phase. We affirm.
I. BACKGROUND
Appellant's stepdaughter, G.D., alleged that appellant sexually assaulted her.'
During the guilt/innocence phase of the trial, G.D. testified that appellant committed
numerous inappropriate acts towards her, beginning when she was eight years old. The
inappropriate acts included: suggesting she try on a pair of women's underwear in a
store while her mother was in another changing room; masturbating at the foot of her bed;
lying nude in her bed next to her while she pretended to sleep; touching her
inappropriately; and penetrating her vagina with his fingers.2 Appellant's counsel cross-
examined the State's witnesses, but did not cross-examine G.D. Appellant did not testify
and did not call any defense witnesses during this phase of the trial.
During the punishment phase, the State called B.R., T.S., and R.T. to testify.
These women recounted an incident that occurred with appellant, approximately six years
before appellant began molesting G.D. According to all four witnesses, they were
1 G.D. was an adult at the time of trial. She testified that the sexual abuse happened approximately
ten years earlier.
2 The State presented four witnesses during the guilt/innocence phase of the trial: G.D., her
father, her mother, and Sergeant Charlotte Brown.
2
playing outside when appellant got their attention by knocking on a window. Through
the window, they saw that appellant was naked and masturbating. They each testified
that appellant pleaded guilty to indecency and that he received deferred adjudication. In
addition, A.C., a childhood friend of one of appellant's daughters, testified that appellant
touched her in her private parts" at a sleepover when she was eleven years old. A.C.
also testified that on one occasion, she saw appellant standing naked and masturbating
at a window while she was playing outside. Defense counsel did not cross-examine the
State's witnesses and did not present any witnesses during the punishment phase of trial.
Appellant filed a motion for new trial. During the hearing on appellant's motion.
five of appellant's daughters stated that, had they testified at their father's trial, they
generally would have had favorable things to say about appellant. They also testified
that appellant's defense counsel did not interview them prior to trial.
Defense counsel testified at the hearing that his trial strategy was to show that
G.D 's delayed accusations of sexual abuse were an attempt by G.D.'s mother to gain an
advantage over appellant in their divorce proceedings. Defense counsel stated that he
did not need to call any witnesses because he was able to pursue this strategy through
cross-examination. He also said that he did not need an expert witness because the
defensive theory was relatively simple. When questioned about his strategy regarding
punishment he explained that he did not question or present any witnesses because it
would have made "a bad situation worse." One of his investigators informed him that
appellant's daughters had played with the girls involved in appellant's indecency case.
3
Defense counsel feared that using appellant's daughters as witnesses would have
opened the door to damaging cross-examination about the incident.
Appellant introduced into evidence at the new trial hearing, an affidavit from
Jerome Brown, Ph.D., in which he attested that CPS records and therapy records of G.D.
could have been reviewed to determine whether proper methods were utilized; that G.D.'s
therapy attendance could have suggested low motivation in treatment, which would be
inconsistent with having been sexually abused; and that, based upon the divorce of
appellant and his wife, there was an increased probability of false allegations. Brown
averred that an expert could have helped develop a line of questioning, and suggested
several books that could have been used to prepare defense counsel. The trial court
denied appellant's motion for new trial.
II. STANDARD OF REVIEW AND APPLICABLE LAW
To prevail on an ineffective assistance of counsel claim, the defendant must show:
(1) counsel's representation fell below an objective standard of reasonableness; and
(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);
Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Our
review of the counsel's representation is highly deferential; we will find ineffective
assistance only if appellant rebuts the strong presumption that his counsel's conduct fell
within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689;
Lopez, 343 S.W.3d at 142; Jaynes, 216 S.W.3d at 851. The record must contain
evidence of the counsel's reasoning, or lack thereof, to rebut the presumption. Moreno
4
v. State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref'd). We review the
totality of representation rather than isolated instances in determining whether trial
counsel was ineffective. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006); Lopez, 343 S.W.3d at 143.
When, as here, ineffective assistance was first urged in a motion for new trial, we
review the two Strickland prongs through the prism of the abuse of discretion standard.
See Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—Corpus Christi 2011, pet. denied);
State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998, pet. ref'd). A trial court
abuses its discretion when no reasonable review of the record could support the trial
court's ruling. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).
DISCUSSION
A. Case Investigation
Counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691.
To establish an ineffective assistance claim for failure to investigate, a defendant must
allege with specificity what the investigation would have revealed and how it would have
changed the outcome of the trial. United States v. Green, 882 F.2d 999, 1003 (5th Cir.
1989). Appellant asserts that defense counsel's performance was inadequate because
he allegedly failed to speak with appellant's daughters. Appellant argues that because
of his failure, defense counsel did not know that the daughters could have provided
testimony that G.D. fabricated her allegations.
Although appellant argues that an "investigation could result in a defense of
fabrication, retaliation, or allegations resulting from parental alienation," the record does
not support these claims. Defense counsel's investigator informed him that appellant's
daughters had played with the girls involved in appellant's indecency case. In addition.
during the hearing on appellant's motion for new trial, appellant's daughters all testified
that G.D. did not have a good relationship with appellant and that appellant was a good
father. However, none of the daughters testified about appellant's sexual abuse charges
or that G.D. was untruthful regarding her allegations. Although appellant's daughters
allege there is animosity among appellant, G,D,, and G.D.'s mother specifically relating
to appellant's divorce, such allegations do not impeach G.D.'s veracity. Appellant fails
to show what further investigation would have revealed and how it would have helped
him. See id.
B. Defense Witnesses
Appellant argues that his daughters and ex-spouse should have been called as
character witnesses during the punishment phase. Appellant claims that the witnesses
would have testified regarding mitigating factors for the jury to consider and that there is
a reasonable probability that the jury's assessment of punishment would have been less
severe had the witnesses testified.
Defense counsel testified that calling appellant's family members would have
invited harmful cross-examination. Anticipating that the State would use the family
members to highlight the 1995 indecency case, defense counsel made a legitimate trial
strategy decision to not put the daughters on the stand. See Ex parte McFarland, 163
6
S.W.3d 743, 757 (Tex. Crim. App. 2005) (explaining that even though possible witness
testimony may have been beneficial to defense, it was a legitimate strategic decision not
to call witness because State would have cross-examined witness about prior robberies
committed by defendant); Milburn v, State, 15 S.W.3d 267 (Tex. App.—Houston [14th
Dist.] 2000, pet. refd) (setting out that counsel can only make a reasonable decision to
forego presentation of mitigating evidence after evaluating available testimony and
determining it would not be helpful); see also Thomas v. State, No. 06-01-00021-CR,
2002 WL 171598, at *8 (Tex. App.—Texarkana, Feb. 5, 2002, no pet.) (not designated
for publication) ("It is a legitimate strategy for counsel not to put even favorable witnesses
on the stand where there is a risk of opening the door to unfavorable testimony on cross-
examination."). Accordingly, because placing the daughters on the stand could have
potentially opened the door to testimony that could harm appellant, we hold defense
counsel's conduct fell within the wide range of reasonable professional assistance. See
Strickland, 466 U.S. at 699-700.
Appellant relies on Milburn, 15 S.W.3d at 270, for the proposition that the failure to
put on available witnesses constitutes ineffective assistance of counsel. Appellant's
reading of Milburn is unpersuasive. In Milburn, trial counsel failed to investigate,
evaluate, or submit any character testimony in spite of the fact at least twenty people
were available to testify on defendant's behalf. Id, at 269-70. Milburn emphasizes the
importance of presenting helpful witnesses and evidence, but also recognizes that
defense counsel may "forego presentation of mitigating evidence after evaluating
available testimony and determining that it would not be helpful." Id. at 270.
7
C. Expert Witness
Appellant argues that trial counsel did not have an expert witness strategy and that
an expert was necessary to counter Sergeant Charlotte Brown's testimony that G.D. had
not been manipulated into making an accusation against appellant.3 An error in trial
strategy will only be considered inadequate representation if counsel's actions are without
a plausible basis. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).
During the motion for new trial hearing, appellant asked defense counsel about retaining
an expert witnesses:
[Appellant Counsel]: Okay. What was your trial strategy not getting
an expert witness in this case, an expert witness
who is trained in child sex abuse cases, a
psychologist, who could—in fact, a mental
health professional with special expertise in
treatment and evaluation of sex abuse
allegations? What was your trial strategy in not
getting an expert to look at the therapy records?
[Defense Counsel]: I did not have a trial strategy in regard to that.
As I said, my core strategy was the fact that G.D.
loathed [appellant] for many reasons.
From defense counsel's answer, appellant reasons that defense counsel had no trial
strategy regarding an expert witness. Appellant claims Dr. Brown could have testified
regarding a pattern of behavior called "sex abuse in divorce syndrome." Further,
appellant asserts that expert review of the complainant's therapy records could have
indicated that complainant's behavior was inconsistent with having been sexually abused.
During the hearing, defense counsel explained his trial strategy, as follows:
My trial strategy was that these accusations which were over 12
years old only came to light based upon a knock-down drag-out divorce
3 Sergeant Brown investigated G.D.'s allegations against appellant.
8
between my client and his wife, and that's when the first real outcry
emanated.
I think the fact that people often make allegations of sexual abuse
during a divorce is certainly something of common knowledge. I don't think
you need an expert to tell that to a jury or anybody else.
Defense counsel stated he executed his trial strategy effectively through cross-
examination of the State's witnesses.
The record reflects that defense counsel's strategy, like Dr. Brown's proposed
strategy, was to characterize the sexual abuse accusations as an attempt by appellant's
wife to gain an advantage over appellant in the divorce proceedings. Defense counsel
concluded, however, that he did not need an expert witness to advance this argument.
Though defense counsel admitted that an expert witness may have helped him develop
a line of questioning for the complainant to show inconsistencies in her behavior, a
defendant's constitutional right to counsel does not mean errorless counsel. See Howell
v. State, 563 S.W.2d 933 (Tex. Crim. App. 1978). This reasoning, supplemented by the
strong presumption that a counsel's actions fall within the wide range of reasonable
professional assistance, leads us to conclude that his actions were both plausible and
within the range of acceptable professional assistance. See State v. Morales, 253
S.W.3d 686, 698 (Tex. Crim. App. 2008) (quoting Strickland, 466 U.S. at 687, 689 (1984)).
Appellant relies on Ex parte Briggs, Wright v. State, and Ex parte Ard to support
his argument that the failure to present expert testimony constitutes ineffective assistance
of counsel. See Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005); Wright
v. State, 223 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd); Ex parte Ard,
9
No. AP-75704, 2009 WL 618982 at *2, (Tex. Crim. App. 2009) (mem. op., not designated
for publication).4 Each case is factually distinguishable. Unlike trial counsel in Briggs,
Wright, and Ard, defense counsel explained his legitimate strategic reasons for his actions
that were not based on timing or financial constraints. In Briggs, the decision not to
produce expert witnesses was based on a financial decision, not a strategic one. See
Briggs, 187 S.W.3d at 457. In Wright, trial counsel did not hire an expert because (1) he
was told that any expert he hired would not be able to interview the complainant, and (2)
by the time he had received the investigators notes he did not have time to contact an
expert. See Wright, 223 S.W.3d at 43. In Ard, the Texas Court of Criminal Appeals
based its reversal on a difference between the expert's testimony at trial and at the writ
hearing that could not be explained or justified by trial strategy. See Ard, 2009 WL
618982, at *5.
In sum, we conclude that trial counsel's decision not to present expert testimony
does not constitute ineffective assistance.
D. Scientific Literature
Appellant also argues that trial counsel's performance was deficient because he
did not fully investigate existing scientific literature. During the motion for new trial,
appellant questioned defense counsel on his familiarity with scientific evidence in sexual
abuse cases as follows:
[Appellant Counsel]: Okay. Have you ever used an expert in a child
sexual abuse case or aggravated sex assault
case?
4 Unpublished opinions have no precedential value and must not be cited as authority by counsel
or by a court. TEX. R. APP. P. 77.3.
10
[Defense Counsel]: Yes, sir, I believe I have.
[Appellant Counsel]: Have you read any books on child abuse in
preparing for cross-examination of complaining
witnesses?
[Defense Counsel]: Well, I've certainly read and kept up with case
law, and I have read some treatises.
Contrary to appellant's assertion, the record does not support the argument that
defense counsel failed to research scientific literature, that defense counsel was unaware
of the literature, or that defense counsel's representation was constitutionally deficient
because he failed to review any scientific literature concerning false allegations.
Defense counsel's familiarity with scientific literature falls within the wide range of
reasonable professional assistance.
E. Cross-Examination of the State's Witnesses
Appellant argues his defense counsel should have cross-examined: (1) Sergeant
Brown about a 2003 visit by G.D. and her father to the sheriff's office; (2) G.D.'s father
about potential past abuse; (3) Captain Susan Maxwells of the Matagorda County
Sheriff's Department about a February 14, 2003 sheriff's report and whether or not she
visited G.D.'s school; (4) G.D.'s mother about CPS allegations of abuse made on a regular
basis; and (5) G.D. regarding her inconsistent statements.
Again, appellant has failed to rebut the presumption that his counsel's cross-
examination fell within the wide range of reasonable professional assistance. Resendiz
v. State, 112 S.W.3d 541, 548 (Tex. Crim. App. 2003) ("noting that a suggestion that
cross-examination should have been conducted in another manner does not rebut
Captain Maxwell did not testify in this case.
11
presumption that counsel's conduct fell within wide range of reasonable professional
assistance"). It is frequently a sound trial strategy not to attack a sympathetic eyewitness
without very strong impeachment. Ex parte McFarland, 163 S.W.3d at 756.
Cross-examination is an art, not a science, and it cannot be adequately judged in
hindsight. Ex parte McFarland, 163 S.W.3d at 756. While appellant has suggested that
certain points in cross-examination could have been done differently, 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, 785 S.W.2d 391, 293 (Tex. Crim. App. 1990) (en banc); see Lopez, 343 S.W.3d
at 143 (holding that an appellate court looks to totality of representation). We hold that
defense counsel's cross-examination constituted reasonable professional assistance.
F. Objecting to Punishment Phase Witness and Filing a Motion for
Continuance
Appellant complains that, during the punishment phase, defense counsel failed to
object to the State's undesignated witness, A.C., and failed to move for a continuance to
investigate A.C. in light of anticipated testimony. Appellant relies on defense counsel's
admission during the hearing that, in hindsight, it may have been a mistake to not object
or to ask for a continuance and that A.C.'s testimony may have contributed to appellant's
sentence.
Despite defense counsel's candid reflection, we assess counsel's performance
without the benefit of hindsight. See Strickland, 466 U.S. at 669 (explaining that a fair
assessment of attorney performance requires that every effort be made to eliminate
12
distorting effects of hindsight, to reconstruct circumstances of counsel's challenged
conduct, and to evaluate conduct from counsel's perspective at the time of trial); see also
Ex parte Welborn, 785 S.W.2d at 393. When claiming ineffective assistance for failing
to object, a party must demonstrate that if trial counsel had objected, the trial judge would
have committed error in refusing to sustain the objection. Vaughn v. State, 931 S.W.2d
564, 566 (Tex. Crim. App. 1996) (en banc). In Hollowell v State, the Texas Court of
Criminal Appeals held that evidence willfully withheld from disclosure under a discovery
order should be excluded from evidence. Hollowell v. State, 571 S.W.2d 179, 180 (Tex.
Crim. App. 1978). The sanction of exclusion, however, should not be imposed absent
bad faith or willfulness on the part of the prosecution. Pena v. State, 864 S.W.2d 147,
149 (Tex. App.—Waco 1993, no pet.).
The record is devoid of any evidence that would show that the State willfully or
knowingly failed to timely disclose A.C.'s testimony. Appellant has not provided any
evidence that the State knew of A.C. before she submitted her statement to police or that
the State deliberately withheld the disclosure of A.C. as a witness. Therefore, we are
unable to conclude that the trial court would have abused its discretion by overruling an
objection to A.C.'s testimony. See Vaughn, 931 S.W.2d at 566 (requiring proof of
prosecutorial bad faith in withholding a witness's information).
When viewed in light of Strickland, appellant's claim that he was denied effective
assistance of counsel based on counsel's failure to ask for a continuance to investigate
A.G. also fails. See Strickland, 466 U.S. at 691. Even assuming the failure was
deficient performance, appellant fails to put forth any evidence that defense counsel's
13
decision not to ask for a continuance prejudiced or harmed his defense. See id. (holding
that to prevail on ineffective assistance of counsel claim, appellant must show deficient
performance prejudiced defense). As previously discussed, appellant must specifically
show what further investigation would uncover and how it would help the defense. See
Green, 882 F.2d 999, 1003. Appellant has done neither. The record fails to show how
defense counsel's failure to request a continuance during punishment prejudiced
appellant's defense. See Strickland, 466 U.S. at 691.
G. Summary
Appellant has failed to show that his attorney's performance fell below an objective
standard of reasonableness or that the outcome of trial would have been different but for
his trial counsel's alleged mistakes. See id., 466 U.S. at 687-691. Because the record
supports the trial court's ruling, we find that the trial court did not abuse its discretion in
denying appellant's motion for new trial.6 See Cueva, 339 S.W.3d at 878.
IV. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of December, 2014.
6 Appellant claims that S.J.P. v. Thaler, No. 4:09-CV-112-A, 2010 WL 5094307 (N.D. Tex. Dec.
3, 2010) compels reversal in this case. Appellant argues that S.J.P. is factually similar to the present case
and because the district court in S.J.P. ruled that the defendant received ineffective assistance of counsel,
we must do the same in appellant's case. We disagree, noting that district court's ruling in S.J.P. was
reversed by Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011).
14