Shaquille O Neal Patterson v. the State of Texas ( 2021 )

Opinion filed May 13, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00200-CR
__________
SHAQUILLE O NEAL PATTERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR51591
MEMORANDUM OPINION
The jury convicted Appellant, Shaquille O Neal Patterson, of indecency with
a child by contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019). The trial
court’s judgment contained a finding that the victim was a child under the age of
fourteen. See TEX. CODE CRIM. PROC. ANN. art. 42.015(b) (West 2018). The trial
court assessed Appellant’s punishment at confinement for twelve years in the
Institutional Division of the Texas Department of Criminal Justice and a $1,000 fine.
In two issues on appeal, Appellant asserts that the trial court erred in failing
to grant a mistrial during voir dire and that Appellant received ineffective assistance
of counsel. We affirm.
Background Facts
On or around March 9, 2018, K.B., the alleged child victim, was living with
Appellant and other family members. K.B. testified concerning an incident where
Appellant made her uncomfortable by lying behind K.B. on the couch as they slept.
K.B. testified that, although Appellant did not move while lying behind her, she
could feel his penis on her bottom. K.B. also testified that she informed her school
counselor about the unwanted touching by Appellant and about Appellant using K.B.
and her siblings to sell drugs. Text messages between K.B. and Appellant, which
indicated that Appellant potentially was using the children to sell narcotics, were
introduced at trial. K.B. testified that she was relieved, but still scared, when her
counselor informed her that she might not have to go home that night.
Another incident, where Appellant allegedly forced K.B. to inappropriately
touch his genitals, was discussed during K.B.’s testimony. K.B. stated that
Appellant asked her to change the music on a radio in the bathroom while Appellant
was taking a bath. While K.B. was doing so, Appellant ordered her to come to the
bathtub. He then took her hand and placed it on his genitals. Appellant stated, “This
is what you’re going to be doing from now on.” K.B. testified that her hand was in
a closed fist around Appellant’s penis and that Appellant moved her hand up and
down before she pulled away. Kelli Crouse, a forensic interviewer with the Midland
Children’s Advocacy Center, confirmed that K.B. had told her that Appellant had
demanded that K.B. enter the bathroom and touch his penis. Appellant never made
her do it again, and K.B. did not tell anyone about the incident until two years later.
K.B. testified that she did not tell her mother about the incident because K.B. was
scared and because, if K.B. would have told her mother, there would have been an
argument or fight between her mother and Appellant.
Joelle Bracken, a social worker with the local school district, testified that she
met with K.B. in her office on March 9, 2018, where K.B. told Bracken that drugs
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were present in K.B.’s home and that K.B. was being forced to take crack cocaine
to individuals. K.B. had never visited Bracken’s office prior to that day, and Bracken
testified that K.B. entered her office upon K.B.’s own volition. Bracken also
testified that K.B. stated that Appellant asked K.B. to send him nude photographs
and that Appellant would enter the bathroom while K.B. was showering. However,
neither Bracken nor Midland Police Department’s lead detective in this case, Jennie
Alonzo, found any indication on K.B.’s phone that Appellant had requested nude
photographs. In response to Bracken’s questioning, K.B. admitted that Appellant
touched her under her clothes. These statements were made on the Friday before the
beginning of spring break, which is a common time for outcries to be made based
on the fear of reentering a dangerous environment, according to Bracken. In
response to K.B.’s statements, Bracken alerted Child Protective Services.
K.B.’s grandfather testified that K.B. approached him about the alleged sexual
abuse by Appellant. K.B.’s grandfather told K.B. to tell her grandmother because
he was concerned that he could get in trouble based on his status of being on federal
supervised release. One month after K.B. initially approached her grandfather about
the alleged sexual abuse, K.B. again brought the problem up to him, but this only
occurred after Child Protective Services had been alerted.
Appellant testified in his own defense. Appellant stated that he was in a
relationship with K.B.’s mother for ten years. Appellant viewed himself as a
stepparent to K.B. Appellant was the disciplinarian in the household, including for
K.B. In regard to the first incident of sleeping behind K.B. on the couch, Appellant
did not dispute the occasion, but he claimed that he only slept at her calves and feet
and never positioned himself behind her.
Appellant stated that K.B. did come into the bathroom to change the radio, but
he stated that this was a common occurrence. Again, Appellant did not dispute the
occasion, but he denied ever forcing K.B. to approach the bathtub and testified that
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he never forced her to touch him. Appellant testified that he never touched K.B.
inappropriately. The day prior to K.B.’s outcry, she and Appellant allegedly had an
argument regarding her performance at a track meet, and Appellant indicated that
this might have been a source of K.B.’s frustration.
Appellant stated that the text messages referring to drug dealing involved
selling Viagra; however, Appellant admitted using cocaine. Appellant admitted to
previously being convicted of possession of a controlled substance, tampering with
evidence, and endangering K.B. in a drug-related incident.
After the jury was empaneled but before any witnesses were called, the State
offered State’s Exhibit No. 1, a certified copy of a document entitled “Waivers and
Stipulations.” Later, during its cross-examination of Appellant, the State asked
Appellant to identify his signature on this document, which contained waivers and
stipulations associated with the revocation of his community supervision and the
adjudication of his guilt for the offense of possession of a controlled substance.
Appellant asserted that his attorney did not allow him to view the document prior to
Appellant signing it. Trial counsel stated in open court that Appellant had pleaded
true to the allegations in the motion to revoke due to counsel’s own ineffective
assistance in failing to review the document carefully. One of the allegations in the
State’s motion to revoke mirrored the indictment in this case. The motion to revoke
alleged that Appellant, “with the intent to arouse and gratify the sexual desire of
[Appellant], cause[d] K.B., a child younger than 14 years of age, to engage in sexual
contact by causing K.B. to touch a part of the genitals of [Appellant]” on or about
March 9, 2018. By signing the waivers and stipulations, Appellant pleaded true to
the State’s motion to revoke and essentially admitted to the offense charged in this
case.
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Issue One
In Appellant’s first issue, he asserts that the trial court committed error by
mistakenly informing the venire panel that Appellant was charged with aggravated
sexual assault, rather than the true charged offense of indecency with a child by
contact. Appellant asserts that the trial court’s misstatement allowed the jurors to
assume that some of the accusations against Appellant included the offense of
aggravated sexual assault. Appellant, upon the misstatement by the trial court,
immediately requested a mistrial, which was denied.
A. Standard of Review
We review a trial court’s denial of a motion for mistrial under an abuse of
discretion standard. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App.
2004). Courts continually acknowledge that “[a] mistrial is a device used to halt trial
proceedings when error is so prejudicial that expenditure of further time and expense
would be wasteful and futile.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999). “Only in extreme circumstances, where the prejudice is incurable, will a
mistrial be required.” Hawkins, 135 S.W.3d at 77. “Therefore, a mistrial should be
granted only in cases where the ‘reference was clearly calculated to inflame the
minds of the jury or was of such damning character as to suggest it would be
impossible to remove the harmful impression from the jurors’ minds.’” Young v.
State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (quoting Rojas v. State, 986
S.W.2d 241, 250 (Tex. Crim. App. 1998)). Otherwise, sound discretion normally
requires the trial judge to consider less drastic alternatives. Torres v. State, 614
S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981).
When a party moves for mistrial, the scope of appellate review is limited to
whether the trial court erred in not taking the most serious action of ending the trial.
Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). An appellate court must
“uphold the trial court’s ruling if it was within the zone of reasonable disagreement.”
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Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (citing Wead v. State,
129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). We do not substitute our judgment
for the trial court’s judgment. Id. Instead, “we decide whether the trial court’s
decision was arbitrary or unreasonable.” Id.
B. Analysis
Appellant asserts that the trial court erred by not granting his request for a
mistrial after the trial court misstated the charge against Appellant prior to voir dire.
In front of the venire panel, the trial court made the following statement:
Ladies and gentlemen, as I have told you, the case about to be
tried this morning is The State of Texas versus Shaquille O’Neal
Patterson, who is charged with the -- by incitement [sic] with the
offense of aggravated sexual assault of a child.
The State immediately asked to approach to inform the trial court of the correct
charge. The trial court then informed the venire panel that Appellant was charged
with the offense of indecency with a child by contact. Appellant moved for a
mistrial, asserting that the trial court had already tainted the minds of the venire
panel. The State requested that the jury be instructed that the court had misspoken.
The trial court instructed the venire panel that it was to disregard the trial court’s
prior “instruction” and again stated that Appellant was charged with indecency with
a child by sexual contact, the correct charge brought against Appellant.
In determining whether a mistrial should be granted, three factors must be
balanced:
1. The severity of the misconduct (the magnitude of the prejudicial effect of
the remarks);
2. The measures adopted to cure the misconduct (the efficacy of any
cautionary instruction by the judge); and
3. The certainty of conviction absent the misconduct (the strength of the
evidence supporting the conviction).
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Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (citing Ramon v. State,
159 S.W.3d 927, 929 (Tex. Crim. App. 2004)).
Most appellate complaints must be preserved by a timely request for relief at
the trial level. Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). “The
‘traditional and preferred procedure’ for seeking relief at trial for a complaint that
must be preserved is ‘(1) to object when it is possible, (2) to request an instruction
to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a
party thinks an instruction to disregard was not sufficient.’” Id. at 98–99 (quoting
Young, 137 S.W.3d at 69). A party may skip the first two steps and request a mistrial,
but he will be entitled to a mistrial only if a timely objection would not have
prevented, and an instruction to disregard would not have cured, the harm flowing
from the error. Id. at 99.
In most instances, an objection will prevent the occurrence of the prejudicial
event, and the failure to make a timely, specific objection prevents appellate review.
Young, 137 S.W.3d at 70. “If an objectionable event occurs before a party could
reasonably have foreseen it, the omission of objection will not prevent appellate
review.” Id. The reasons are clear. It is not possible to make a timely objection to
an unforeseen occurrence, and an objection after an event occurs cannot fulfill the
purpose of the objection, which is to prevent the occurrence of the event. Id.
Similarly, the request for an instruction that the jury disregard an
objectionable occurrence is essential only when such an instruction could have had
the desired effect, which is to enable the continuation of the trial by an impartial
jury. Id. “But if an instruction could not have had such an effect, the only suitable
remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to
presenting the complaint on appeal.” Id. “Faced with incurable harm, a defendant
is entitled to a mistrial and if denied one, will prevail on appeal.” Id.
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 Accordingly, when a party’s first action is to move for mistrial, as was
Appellant’s, the scope of appellate review is limited to the question of whether the
trial court erred in not taking the most serious action of ending the trial. In other
words, an event that could have been prevented by timely objection or cured by
instruction to the jury will not lead an appellate court to reverse a judgment on appeal
by the party who did not request these lesser remedies in the trial court. Id. Limited
as this scope of appellate review may be, such an appellate review is available to
such a party. Id.
In this case, Appellant made no objection to the trial court’s comment and did
not request an instruction that the jury disregard the comment. Appellant asserts that
the trial court should have brought in a new venire panel, as voir dire had just begun
at the time the court made the erroneous comment. Appellant argues that an
instruction to the jury would not have cured the prejudice caused to Appellant
because “once the jury heard Appellant was charged with the offense of aggravated
sexual assault, it could draw inferences” that Appellant contends could only be cured
by a new venire panel. We disagree.
1. Severity of Misconduct
Appellant asserts that the trial court’s error of stating that Appellant was
charged with aggravated sexual assault tainted the minds of the venire panel beyond
repair. In support of his argument, Appellant cites La Rosa v. State for the
proposition that the voir dire process is designed to insure, to the fullest extent
possible, that an intelligent, alert, disinterested, and impartial jury will perform the
duty assigned to it. See 414 S.W.2d 668, 671 (Tex. Crim. App. 1967). Appellant
claims that, after hearing the wrong charge, the jury would no longer be able to be
impartial due to the emotional and inflammatory nature of the trial court’s statement.
Inflammatory comments, however, do not necessarily create prejudice. See
Hawkins, 135 S.W.3d at 78. Rather, we look to determine whether the references
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were made intentionally or mistakenly. See State v. Cabrera, 24 S.W.3d 528, 532
(Tex. App.—Corpus Christi–Edinburg 2000, pet. ref’d). In Cabrera, the prejudice
came from the State’s repeated and deliberate attempts to bolster the credibility of
the child victim at the expense of the defendant and despite repeated warnings from
the trial court. See id. Here, however, the trial court’s misstatement of the charged
offense could have reasonably been a mistake, rather than an intentional act. Also,
unlike Cabrera, neither the State nor the trial court referred to the improper offense
with regard to the evidence or the credibility of any witnesses. The first, and last,
reference to the allegation of aggravated sexual assault came from the trial court
prior to the commencement of voir dire and was clearly a mistake.
Given that the jurors actually selected from the venire panel were in a position
to hear the correct charge against Appellant, no evidence of aggravation was
presented at trial, and the correct charge was given, we conclude that the magnitude
of any potential prejudice is low.
2. Curative Instructions
Appellant argues that any instruction requested or given by the trial court to
“disregard the judge’s own actions is fruitless and more antagonistic than helpful in
seeking a new venire panel.” The trial court instructed the jury on the correct charge
after it misread the indictment:
THE COURT: Ladies and gentlemen, I misspoke on the very
first instruction to you. You are to disregard that completely and
totally.
The indictment alleges and [Appellant] is charged with
indecency with a child by sexual contact.
Appellant failed to object to the trial court’s curative instructions, and even if
he had objected, the curative instructions given by the trial court were adequate.
Compare Unkart, 400 S.W.3d at 99 (holding general rule is that a complaint to an
improper judicial comment must be preserved at trial), with Blue v. State, 41 S.W.3d
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129, 132–33 (Tex. Crim. App. 2000) (plurality op.) (granting relief on an improper-
judicial-comment complaint that was not preserved at trial, where plurality focused
on comments affecting defendant’s presumption of innocence). Here, the trial court
explicitly instructed the jury to disregard any portion of the prior, erroneous
statement. See Archie, 221 S.W.3d at 700 (holding trial court’s curative instructions
essentially told jury to disregard prosecutor’s statement on defendant’s refusal to
testify; instruction sufficiently ameliorated any potential harm). It is clear the trial
court intended to protect Appellant’s rights, and we conclude that there is no
reversible error in the trial court’s instruction.
In addition to the trial court’s instruction, we note that the State is the party
who prompted the instruction from the trial court by saying: “I think you can give
[the jury] an instruction that you misspoke, Judge.” The State is also the party who
immediately interrupted the judge and asked to approach the bench in order to
remedy the mistake. The swiftness of the prosecutor’s action is significant since the
jury would ultimately have little time to dwell on the misstatement. The prosecutor’s
action, combined with the trial court’s instructions, served to ameliorate any
potential harm from the improper reference. Further, the jury charge correctly
instructed the jurors that Appellant was on trial solely on the charge contained in the
indictment.
Appellant’s sentence of twelve years was in the middle of the possible
punishment range—two to twenty years. Appellant had prior criminal history that
was introduced against him at trial. Under the circumstances, we believe that the
trial court’s curative instructions were effective. The jury was in the position to
determine guilt/innocence and could have properly done so. Any effect of the
improper reference was cured by the apology and instructions to disregard. See
Hawkins, 135 S.W.3d at 85; see also Brown v. State, 769 S.W.2d 565, 567 (Tex.
Crim. App. 1989).
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3. Strength of Evidence Supporting Conviction
We do not believe that the strength of the evidence supporting Appellant’s
conviction in this case is relevant. At the time the motion for mistrial was denied,
no evidence had been admitted; therefore, the trial court could not rely on any
evidence in this case in its determination.
Given the prosecutor’s swift action, the trial court’s apology and instruction
to the venire panel to disregard, the correct charge having been given to the jury, and
the minimal likelihood of prejudice caused by the court’s misstatement, we do not
find that the trial court abused its discretion in denying a mistrial. See Ramon, 159
S.W.3d at 932. Furthermore, we believe that the curative instruction given by the
trial court cured any potential prejudice the misstatement by the trial court could
have caused. Appellant’s first issue is overruled.
Issue Two
Appellant’s second issue asserts that he received ineffective assistance of
counsel when his trial counsel failed to review a stipulation in a separate
revocation/adjudication proceeding and properly advise Appellant of an admission
therein that related to the elements of the instant offense. Insofar as Appellant
collaterally challenges a conviction other than his conviction for indecency with a
child by contact, we lack jurisdiction to address any such collateral attack on a
judgment that is not before us on this direct appeal. See Williams v. State, No. 14-
12-00483-CR, 2013 WL 5969666, at *1 (Tex. App.—Houston [14th Dist.] Nov. 7,
2013, no pet.) (mem. op., not designated for publication).
Based upon State’s Exhibit Nos. 1 and 3, as well as Appellant’s testimony, we
know that Appellant was on community supervision at the time he was charged with
the instant offense and that the State filed a motion to revoke his community
supervision. In response to the State’s motion to revoke, Appellant signed waivers
of his right to a revocation hearing and stipulated to the allegations contained in the
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motion to revoke. The allegations in the motion to revoke included the instant
offense. Appellant asserts that he did not knowingly and voluntarily sign the waiver
and that Appellant likely felt compelled to testify and waive his Fifth Amendment
privilege upon State’s Exhibit No. 1 being admitted into evidence at the opening of
trial.
A. Standard of Review
To establish that counsel rendered ineffective assistance at trial, Appellant
must show that counsel’s representation fell below an objective standard of
reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Strickland, 466 U.S. at 694. There is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and the defendant must overcome the presumption that the challenged action could
be considered sound trial strategy. Id. at 689. A failure to make a showing under
either prong of the Strickland test defeats a claim of ineffective assistance of counsel.
Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
“We review the totality of the evidence when evaluating Appellant’s
ineffectiveness claim.” Id. at 894. A claim of ineffective assistance of counsel “must
be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.” Thompson, 9 S.W.3d at 814 (quoting McFarland v. State,
928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Direct appeal is usually an
inadequate vehicle to raise such a claim because the record is generally undeveloped.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We note at the
outset of our analysis that no hearing was held on Appellant’s motion for new trial.
Accordingly, apart from the statement made by trial counsel in open court, the
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appellate record does not contain an explanation from trial counsel concerning his
actions.
B. Analysis
Relying on Long v. State, Appellant asserts that a stipulation or argument that
destroys Appellant’s only defense cannot be classified as trial strategy. See Long v.
State, 764 S.W.2d 30, 31 (Tex. App.—San Antonio 1989, pet. ref’d); see also
Hutchinson v. State, 663 S.W.2d 610, 613–15 (Tex. App.—Houston [1st Dist.] 1983,
pet. ref’d) (finding ineffective assistance of counsel where it was “obvious from the
record that Appellant’s counsel never intended to present any defense to the drug
charge and that the plea of not guilty was never seriously urged”). In Long, trial
counsel presented an insanity defense but then stipulated to a police report that
showed that Long had become voluntarily intoxicated, thereby annulling his defense
strategy. Long, 764 S.W.2d at 31. The trial court then “expressly based its rejection
of appellant’s defense on the damaging stipulated statement regarding voluntary
intoxication.” Id. The San Antonio court determined it to be “objectively
unreasonable for counsel to stipulate to evidence that demolishes the defense he has
proffered.” Id. Here, Appellant pleaded “not guilty” to the instant offense but, at
the direction of trial counsel, pleaded “true” to a stipulation in another matter that
essentially admitted the elements of the charged offense in this case. Therefore, any
defense presented by Appellant in this case, as well as his plea of “not guilty” were
facially annulled based on the signed stipulation.
Trial counsel for Appellant admitted on the record that he was ineffective in
his representation. Assuming, without deciding, that the first prong of Strickland
has been met, we address directly the second prong. Appellant has not carried his
burden to establish the second prong of Strickland: that there is a “reasonable
probability” the result of the proceeding would have been different but for counsel’s
deficient performance. Strickland, 466 U.S. at 693–94. A reasonable probability is
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a probability sufficient to undermine confidence in the outcome of trial. Strickland,
466 U.S. at 694. This prong of the Strickland test asks if, “taking into account the
totality of the evidence before the judge or jury,” “‘there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.’” Ex parte Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011)
(quoting Strickland, 466 U.S. at 695). After reviewing the evidence presented to the
jury, which we have outlined above, we cannot say that there is a reasonable
probability that the result of the proceeding would have been different but for
counsel’s alleged deficient performance. As discussed at length below, confidence
in the outcome of this trial was not undermined. In light of the positive and
consistent testimony given by the multiple witnesses for the State of K.B.’s outcries,
we do not agree with Appellant’s contention that the stipulation was “an albatross
around the defense’s collective neck,” without which, there was a reasonable
probability of a different result.
The governing legal standard plays a critical role in defining the question to
be asked in assessing the prejudice from counsel’s errors. Strickland, 446 U.S. at
695. When a defendant challenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt concerning guilt.1 Id. We do not take lightly that a signed
statement of admission was placed before the jury by error of Appellant’s counsel,
but in assessing the prejudice, we must consider the totality of the evidence before
the judge or jury. Id. Some factual findings will have been unaffected by the errors,
1
“An assessment of the likelihood of a result more favorable to the defendant must exclude the
possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. A defendant has no entitlement
to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of
prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision. It should not depend on the idiosyncra[s]ies of
the particular decisionmaker, such as unusual propensities toward harshness or leniency.” Strickland v.
Washington, 466 U.S. 668, 695 (1984).
14
and factual findings that were affected will have been affected in different ways. Id.
“Some errors will have had a pervasive effect on the inferences to be drawn from
the evidence, altering the entire evidentiary picture, and some will have had an
isolated, trivial effect.” Id. at 695–96. “Moreover, a verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than
one with overwhelming record support.” Id. at 696. “Taking the unaffected findings
as a given[] and taking due account of the effect of the errors on the remaining
findings, a court making the prejudice inquiry must ask if the defendant has met the
burden of showing that the decision reached would reasonably likely have been
different absent the errors.” Id. Keeping this in mind, our ultimate focus of inquiry
must be on the fundamental fairness of the challenged proceeding. Id.
Application of the governing principles set out in Strickland is not difficult in
this case. “In making the determination whether the specified errors resulted in the
required prejudice, a court should presume, absent challenge to the judgment on
grounds of evidentiary sufficiency, that the judge or jury acted according to law.”
Id. at 694. Appellant did not carry his burden to show that he suffered sufficient
prejudice to warrant setting aside his conviction and sentence. Evidence showing
that the jury could have reasonably believed Appellant to be guilty includes, but is
not limited to, several important key points detailed below.
First, K.B. gave consistent statements to multiple confidants from the outset
concerning the inappropriate events that transpired. The jury could have properly
taken K.B.’s consistent testimony into consideration and determined that her
credibility outweighed Appellant’s. K.B.’s testimony was rather “matter-of-fact”
and without outward exaggeration. Appellant’s testimony during trial did not negate
K.B.’s assertion that they had lain on the couch at the same time and that she was in
the bathroom while Appellant was bathing. The jury could have reasonably
concluded that K.B.’s detailed testimony was more credible than Appellant’s
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concerning the true context of the contact that transpired between the two of them.
We further note that Appellant admitted to his previous conviction of endangering
K.B. by using her to sell drugs for him, validating the reliability of the content in her
outcries. In light of the totality of the evidence, with reasonable probability, we
conclude that the result of the jury’s verdict would not have been different even
without the stipulation signed by Appellant. We therefore believe that the jury
would have reasonably concluded, based on the evidence presented at trial, that
Appellant committed the acts alleged, even had the written admission been excluded.
Based on the record before us, we cannot say based on a reasonable
probability that the outcome of the proceeding would have been different if the
stipulation would not have been signed and/or introduced. There is no outward
indication in the record that the jury relied on the signed stipulation in making the
determination that Appellant was guilty of indecency with a child, and the State did
not reference or rely on the signed stipulation in closing argument. Failure to make
the required showing of sufficient prejudice defeats Appellant’s ineffectiveness
claim. Appellant’s trial was not fundamentally unfair. Because of Appellant’s
inability to carry his burden under the second prong of the Strickland test, we
overrule Appellant’s second issue relating to ineffective assistance of counsel.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
May 13, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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