Ulysses Love v. State ( 2009 )

Opinion issued November 19, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00941-CR

ULYSSES LOVE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1122222

MEMORANDUM OPINION

           A jury convicted Ulysses Love of indecency with a child.  Tex. Penal Code Ann. § 22.011(a)(2) (Vernon Supp. 2009).  The trial court then sentenced Love to five years’ confinement pursuant to an agreement between the State and defense counsel.  Love appeals, contending in three issues that (1) he was denied due process when the trial court sustained the State’s objections to testimony relating to the truthfulness of the complainant; (2) he was denied due process because the trial court refused access to a document provided to and reviewed by a forensic interviewer prior to her testimony; and (3) his counsel rendered ineffective assistance by opening the door to an extraneous sexual assault offense.  We affirm.

Background

Child Protective Services (CPS) placed Love’s daughter, M.G.L., with Love when she was nine years old.  Love was very dedicated to his daughter’s academic success and told school officials that, for his daughter, failure was not an option.  Love prided himself on being a strict disciplinarian and punished M.G.L. if her grades did not meet his standards.  In November 2006, when M.G.L. was twelve years old and in the sixth grade, she and Love had a dispute over her school progress report.  Love disciplined M.G.L. and took her to school. During her before-school care, M.G.L. wrote a letter to a teacher stating that her father whipped her, made her squat against the wall, slapped her, and stepped on her face with his boot.  As a postscript, M.G.L. wrote that her father also touched her inappropriately.  After a teacher read the letter, M.G.L. spoke with the school’s magnet coordinator and a counselor before CPS removed her from school and placed her in custody.

M.G.L. testified that she began living with Love when she was nine, after CPS removed her from both her mother’s care, because her mother was an alcoholic, and her uncle’s care, because a cousin had sexually abused her. According to M.G.L., she did not want to live with Love because he disciplined her and whipped her if she did wrong, and her mother told her to lie to CPS and say that Love “did something he didn’t” to get out of living with him, but M.G.L. refused.  M.G.L. testified that after she moved in with Love, he began to act inappropriately.  Once, he asked her to give him a hug and then pulled her onto his lap, so that she was straddling him face forward and their private parts were touching through clothing, and held her here.  Another time, he came to her bedroom while she was in bed and got on top of her and began moving in a circular motion while their private parts were touching through clothing.  Additionally, M.G.L. testified that once Love required her to remove her panties and bend forward over his bed and then she felt something hard press into her buttock. Another time, as a punishment, M.G.L. said Love made her remove all of her clothes except her socks and watch a pornographic DVD and drink wine coolers, but he did not touch her at that time. Love also engaged in other forms of discipline, including whipping with a belt and forcing M.G.L. to either squat against a wall for long periods of time or stand on one foot while holding books in each hand.  On the morning she handed the note to a teacher, he had whipped her and placed his boot on her face as she was lying on the floor.  M.G.L. testified that she never told anyone about any of the sexual contact because she was ashamed and afraid, and she tried not to think about what her father did to her because it made her cry.  She also testified that Love never told her why he touched her inappropriately, but once he did tell her that when she got older, if someone tried to rape her, it would affect her more than what he did to her.

Susan Odhiambo, a forensic interviewer with the Children’s Assessment Center, interviewed M.G.L. after CPS took her into custody in November 2006.  She testified that, when she interviewed M.G.L., M.G.L. knew the difference between the truth and a lie and promised to tell only the truth.  Odhiambo’s testimony about M.G.L.’s interview was similar to M.G.L.’s testimony about what happened.

Dr. Michelle Lyn, who examined M.G.L. at the Children’s Assessment Center in February 2007, testified that M.G.L. told her that her father had touched her vagina with his hand or his private part three to four times per year when she was in the third, fifth, and sixth grades.  M.G.L. did not tell her about any physical abuse or punishment.  Dr. Lyn testified that M.G.L. appeared normal in her physical exam with no signs of scratching, bruising, or tearing, which neither rules out nor confirms sexual abuse.  Dr. Lyn further testified that approximately ninety percent of children who have made allegations of sexual abuse also have normal exams and that the best evidence of sexual abuse is the child’s disclosure.

Liz Allen, M.G.L.’s fourth grade teacher, testified on Love’s behalf.  She testified that she never saw any marks, bruises, or signs of abuse on M.G.L.  She also believed that she and M.G.L. had a close relationship, but M.G.L. never told her about any kind of abuse.  Dorothy Fletcher, who, with her husband, employed Love at a car wash, also testified on his behalf.  She testified that she had a close relationship with M.G.L. and Love, and she never saw any signs of abuse on M.G.L.  She further testified that (1) she did not believe Love could ever abuse his daughter; (2) M.G.L. had lied to her “very often” in the past; and (3) she believed that she and M.G.L. had an open relationship in which M.G.L. would have told her about problems such as her father abusing her.  Gerald Fletcher, Dorothy’s husband, testified that he and Dorothy saw M.G.L. mostly when she was younger because Dorothy became ill, and they were not able to spend as much time around the car wash where they usually saw M.G.L.  Gerald had never seen any signs of abuse on M.G.L., and he had never observed Love abusing M.G.L. on the car wash surveillance tapes, which he watched regularly.

Sonya Hereford, M.G.L.’s CPS caseworker, testified that M.G.L. was always consistent in what she said that Love did to her.  Hereford visited M.G.L. in foster care during the entire year after CPS removed her from her father’s home.  M.G.L. told Hereford that she did not want to see her father, but she wanted him to apologize to her. Hereford further testified that, while M.G.L. was in foster care, she was very sad that none of her family members contacted her, but she never changed her story about what her father had done.

Love called Provilla Henderson Scruggs, who engaged in individual and family therapy sessions with M.G.L. and Love both before and after CPS placed M.G.L. with Love, and who ultimately approved M.G.L.’s placement there.  On direct examination, defense counsel attempted to elicit from Scruggs that she had no concerns about M.G.L.’s living situation with Love after she was placed. He asked her if she would have voiced a concern that M.G.L.’s placement with Love was not in M.G.L.’s best interest if she had such a concern.  Scruggs replied that she had one concern about M.G.L.’s potential placement with Love after she learned of allegations that Love was previously involved in another sexual assault.  Scruggs learned of this before CPS placed M.G.L. with Love.  Defense counsel objected to Scruggs’s testimony revealing the prior sexual assault allegation on the basis that it was non-responsive and violated a motion in limine, but the trial court held that Scruggs’s answer was responsive to the question defense counsel asked.  Defense counsel moved to disregard the question but the trial court held that Scruggs had already answered it.  Before cross-examination, the State asked permission to inquire into the prior sexual assault allegation because defense counsel had opened the door to the existence of the allegation.  At a bench conference, the trial judge explained the bounds of what she would allow the State to elicit on cross-examination about Scruggs’s concerns, ruling that Scruggs could testify that she had a concern about the placement but could not go into detail about that concern.

On cross-examination, the State asked Scruggs if she had any concerns about Love’s ability to keep M.G.L. safe in his home environment with his girlfriend, Brenda Campbell.  Scruggs responded that she did, and the State asked what information gave rise to Scruggs’s concerns.  Scruggs said that she was concerned about (1) M.G.L.’s physical safety based on allegations that Campbell spanked her, (2) Love and Campbell’s ability to monitor other children in the home and make sure the environment was safe, (3) allegations of domestic conflict or violence between Love and Campbell, and (4) M.G.L. may have mentioned the use of alcohol or marijuana in Love and Campbell’s home. Defense counsel did not object to any of this testimony.  The State then asked Scruggs what other concerns she had based on Love’s history, and Scruggs testified in greater detail about the prior sexual assault allegations against Love, exceeding the parameters that had been set by the trial court.  Defense counsel objected three times during this testimony, and the trial court sustained one but overruled two of the objections.  At the close of Scruggs’s testimony, defense counsel moved for a mistrial on the basis that the State violated the trial court’s limine ruling, prejudicing Love’s rights.  The trial court overruled this motion, saying that, in her opinion, defense counsel opened the door by calling Scruggs to the witness stand.

          Love then testified in his own defense.  Love stated that he learned that M.G.L. was his daughter when she was five years old, but he had been involved in her life before that as her godfather.  M.G.L. came to live with him when she was in the third grade after CPS had removed her from both her mother’s and her uncle’s custody.  When M.G.L. first came to Love’s home, he lived with Brenda Campbell and Campbell’s two grandchildren, but Campbell moved out of the house when M.G.L. was between fourth and fifth grade because, according to Love, she thought Love let M.G.L. get away with anything.  Love said that after M.G.L. failed kindergarten, he became involved in teaching M.G.L. things, such as numbers and the alphabet, even before she came to live with him.  When she came to live with him, she got straight A’s in the third, fourth, and fifth grades, and did not have any problems until she began middle school in the sixth grade.

          Love testified that his method of discipline was whipping with a belt, and he would whip M.G.L. for bad grades.  He would also make her squat against the wall as a punishment to avoid whipping her.  Love testified that, on the morning that M.G.L. gave the teacher her note, he had whipped her because she did not give him her report card for the first six weeks of school, and when he got the report card for the second six weeks, he saw her failing grades from the first six weeks.  Love testified that he had never slapped or kicked M.G.L., put his boot on her face, made her sit on his lap and give him a hug, rubbed his genitals on her, forced her to drink alcohol and watch pornography, or lain in her bed. On cross-examination, Love testified that he believed he was responsible for M.G.L.’s academic success.  He said that he was a strict parent, but he did not believe that he was mean to M.G.L. or that she was afraid of him.  He testified that he never sexually abused M.G.L. and never touched M.G.L. “or no other [sic] child.”  Love agreed that, if true, what M.G.L. described was absolutely sexual abuse, but he argued that what she said was not true.

          Brenda Campbell testified that when M.G.L. came to live with Love, the three of them lived together without any other children, but she also had her own apartment where her grandchildren lived with her and they occasionally visited Love’s home.  She testified that Love drank beer and not wine coolers.  Finally, she testified that she moved out of the house with Love and M.G.L. because M.G.L. lied to her.  She testified that M.G.L. did not lie all the time, but did lie unnecessarily.  Campbell, however, testified that she did not know if M.G.L. was telling the truth about the sexual abuse allegations, and that if M.G.L. had come to her with those allegations, she would have believed M.G.L. because one believes children when they make those kinds of accusations.

          After the defense rested, the State called a witness to testify about Love’s extraneous offense of sexually assaulting another child, to counter Love’s statement that he had never touched M.G.L. or any other child, which the State contended opened the door to the extraneous offense.  Defense counsel objected on Rule 403 grounds, alleging that the evidence would be more prejudicial than it would be probative.  The trial court allowed this testimony.  The State called Shameka Specks, Brenda Campbell’s twenty-eight-year-old daughter, who testified that she met Love when she was six or seven and her mother and Love began dating.  Specks testified that she grew up around Love and that he favored her over her other siblings.  One night when Specks was eleven, Love took her with him to run an errand and then to his apartment where he tried to rape her.  Campbell took Specks to the hospital after she found out about the incident, and the police became involved, but Specks eventually dropped the charges because she was afraid of what Love might do to her or her family, and she was tired of her mother being sad about it.  Specks testified that, although she knew M.G.L., she never told M.G.L. that Love had assaulted her.

          The jury found Love guilty of indecency with a child.  The State and defense counsel then agreed on a punishment of five years’ confinement, and the trial court sentenced Love to this punishment.

Discussion

M.G.L.’s Truthfulness

          Love first contends that he was denied due process when the trial court sustained the State’s objections to his counsel’s questions about M.G.L.’s truthfulness.  Specifically, Love contends that the trial court sustained objections to testimony about M.G.L.’s truthfulness, or lack thereof, during the testimony of Odhiambo, Allen, and Fletcher.

          We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.  Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).  A reviewing court should not reverse unless the record shows a clear abuse of discretion. Id.; Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).  An abuse of discretion exists only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.  Zuliani, 97 S.W.3d at 595; Roberts, 29 S.W.3d at 600.

          Both Allen and Fletcher commented on M.G.L.’s truthfulness before the State objected.  Defense counsel asked Allen if she observed any problems in her relationship with M.G.L.  Allen answered, “No, other than when she didn’t tell the truth, well, [Love] would come to school and check on it.  And I would try and convince her to always tell the truth.  You know, you avoid problems if you’re truthful, but in some instances, she was not.  I can remember. . . .”  The State then interrupted Allen by objecting, and the trial court sustained the objection.  The State objected to Allen’s testimony regarding a specific instance of M.G.L.’s untruthfulness, not her testimony about M.G.L.’s general propensity for truthfulness.  A witness’s character for truthfulness cannot be attacked on cross-examination or by extrinsic evidence concerning specific instances of untruthfulness.  See Tex. R. Evid. 608(b) (“Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility . . . may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.”); see also Billodeau v. State, 277 S.W.3d 34, 39–40 (Tex. Crim. App. 2009).  The trial court, therefore, correctly sustained the State’s objection to Allen’s testimony regarding a specific instance of M.G.L.’s untruthfulness.  Love contends that the trial court also erred later in the testimony when Allen was prevented from explaining why she did not believe M.G.L.’s allegations.  The trial court, however, never ruled on the State’s objection, because defense counsel abandoned the question after the State objected to its relevance.

Love also contends that Fletcher was prevented from testifying as to whether M.G.L. told the truth because the trial court sustained the State’s objection.  Such an exchange, however, does not appear in the trial record.[1]  Rather, Fletcher testified without objection regarding M.G.L.’s truthfulness.  On cross-examination, the State asked, “[S]o you’re saying in your opinion there is no way that Mr. Love can be guilty of indecency with a child?”  Fletcher responded, “No, because I know [M.G.L.,] and I know what [M.G.L.] was able to do.  I know her lies.  I could tell lie from the truth[,] and[,] very often, she did lie to me[,] and I would know she was. . . .”  The State did not object to Fletcher’s testimony, but instead interrupted Fletcher by asking another question.  Later, in response to a question from the State about how Fletcher only heard information about the case from Love and had not heard M.G.L.’s “side of the story,” Fletcher stated that “there is a question [about the truthfulness of the allegations] because she lied to me so often.”  The State did not object.

The State did not request a limiting instruction after its objection to Allen’s testimony about M.G.L.’s truthfulness, and the trial court sustained no objections to Fletcher’s testimony about M.G.L.’s truthfulness. Furthermore, Campbell testified that M.G.L. “liked to lie” and “used to lie” so much so that Campbell cited it as her reason for moving out of Love’s house.  Thus, Love has failed to present any error for our review as to these witnesses.[2]

With respect to Odhiambo, the trial court sustained the State’s objection when defense counsel asked Odhiambo if she felt like M.G.L. was being truthful in her forensic interview.  The trial court, however, did not abuse its discretion in excluding an expert opinion about the truthfulness of a child complainant’s allegation.  Yount v. State, 872 S.W.2d 706, 708, 710–12 (Tex. Crim. App. 1993) (“We hold that Rule 702 does not permit an expert to give an opinion that the complainant or a class of persons to which the complainant belongs is truthful.”); see also Miller v. State, 757 S.W.2d 880, 883 (Tex. App.—Dallas 1988, pet. ref’d) (holding that trial court erred in allowing State to elicit forensic interviewer’s opinion on whether child’s report of sexual assault was truthful).

Access to Document Reviewed by Forensic Interviewer

          Love next complains that the trial court did not allow him to see a copy of a document that Odhiambo reviewed in advance of her testimony.  Defense counsel asked Odhiambo whether she had “reviewed any kind of written report” before testifying at trial.  Odhiambo responded in the affirmative, and stated that she had received “[a] transcript sent by the prosecutor.”  Defense counsel did not further develop this testimony with additional questions about the nature or contents of the “transcript,” nor did defense counsel establish through cross-examination when Odhiambo reviewed the document and whether that review refreshed her memory.  Instead, defense counsel simply asked to see a copy of the document, the State responded that it was work product, and on the basis of the State’s representation, the trial court did not require that it be produced to defense counsel.

          When a witness uses a writing to refresh her memory before testifying in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce into evidence the portions which relate to the witness’s testimony.  Tex. R. Evid. 612.  Even if the transcript given to Odhiambo falls under the protection of the work product privilege, privileged documents must be produced for inspection when used by a witness on the stand to refresh her memory. See Franklin v. State, 986 S.W.2d 349, 355 (Tex. App.—Texarkana 1999), rev’d on other grounds, 12 S.W.3d 473 (Tex. Crim. App. 2000).  Here, although Odhiambo said that she reviewed a document prior to trial, there is no evidence of specifically when she reviewed it or whether she used it to refresh her memory.  The Court of Criminal Appeals addressed this issue in Pondexter v. State, when it held that the appellant was only entitled to the prosecutor’s notes taken during voir dire if the prosecutor actually used the notes to refresh his memory when he later testified.  942 S.W.2d 577, 582 (Tex. Crim. App. 1996); see also Saldivar v. State, 980 S.W.2d 475, 497 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding that when witness never stated that he used business records to refresh his memory, trial court did not err in denying appellant’s request for records).

Odhiambo testified that she reviewed a document sent to her by the prosecutor, she was unaware of the length of the document and how long it took her to read it, and she spoke with the District Attorney’s office about her testimony prior to reading the document.  However, defense counsel did not inquire about the nature of the document or whether Odhaimbo had used it to refresh her memory or relied on it for her opinions.[3]  Reliance on the material to refresh recollection or to form a basis for the witnesses’ opinions is a prerequisite to disclosure of such materials.  See Saldivar, 980 S.W.2d at 497.  Thus, we hold that the trial court did not abuse its discretion in denying defense counsel’s request for the document or in failing to require the State to produce the document for in camera inspection.  Love argues that the trial court erred in not reviewing the document in camera to determine Love’s entitlement to the document.  Although we hold that Love’s argument based on Rule 612 ultimately fails since Love never established that Odhiambo used the document to refresh her memory, we also note that Love failed to make an offer of proof concerning the document.  Without the inclusion of the document in the record, we cannot determine whether the trial court committed harmful error by refusing to allow the defense to review the document.  See Franklin, 986 S.W.2d at 355.

Ineffective Assistance of Counsel

Love argues that defense counsel rendered ineffective assistance because he opened the door to testimony about Love’s prior sexual assault charge during both Scruggs’s testimony and Love’s own testimony.  To prevail on a claim of ineffective assistance of counsel, 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.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of Strickland requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  Thus, the defendant must prove objectively, by a preponderance of the evidence, that his counsel’s representation fell below professional standards.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Thompson, 9 S.W.3d at 812.  In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that the attorney’s performance falls within the wide range of reasonable professional assistance or trial strategy.  Thompson, 9 S.W.3d at 813. Furthermore, a claim of ineffective assistance must be firmly supported in the record.  Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).  Where the record does not offer an explanation for trial counsel’s actions, we presume that counsel made all significant decisions in the exercise of reasonable professional judgment.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

The trial court granted a motion in limine excluding evidence of the prior sexual assault allegations against Love.  Defense counsel had the following exchange with Scruggs:

Defense: You didn’t forward anything to CPS or anyone else after the child was placed raising any concerns?

Scruggs: After the child was placed from whom, may I ask?

Defense:      In Mr. Love’s custody.

Scruggs: I don’t recall that at all.  I would have to just—it’s, like I said, six years.  I haven’t reviewed all these records to refresh my memory, and I don’t want to say that I did—I didn’t or I did.

Defense: Did you—so that would be the same thing as far as asking you if you had a concern about the placement of [sic] Mr. Love by the court was not in her best interest.  You would have voiced that?

Scruggs: I had one concern about placement with Mr. Love after there were allegations that had not been validated on—about an alleged previous sexual assault and I wanted CPS—I made—

Defense: Objection, nonresponsive.  We’re talking about after she was placed.

The trial court ruled that defense counsel’s question was not about after M.G.L. was placed but whether Scruggs had any concerns generally, and Scruggs’s answer was responsive to that question.  Defense counsel then requested that the jury be instructed to disregard the question because it was not the question he was intending to ask, and he did not want to breach the motion in limine.  But the trial court observed that Scruggs had already answered the question and gave no instruction.  Before cross, the State asked to question the witness further about the extraneous complaint because defense counsel had opened the door.  The trial court then ruled:

This is what I’m going to do.  I will allow you to, because I think that was the thrust of what the purpose of this witness was counseling, everything was fine, everything was good[,] and there weren’t concerns.  That’s why she got placed and that was the thrust and the fact of the matter is, apparently, there is unresolved complaint against him and it did cause concern.  So I will allow you to go into that. . . . I will allow you to ask if there were concerns but not to go into—it wouldn’t matter who the person was, the age of the person, if there was an unresolved . . . complaint—and the only reason you’re going to want to go into sexual is to support that this is true.  That’s not—that’s not the purpose of what I’m going to allow you to go through this with.  Not that he was a glowing character and that she was happy to put him there, but she did have a real concern and—but it shouldn’t matter what the real concern is. It can be a serious allegation. . . . Okay this is what I’m going to let you do.  I’m not going to allow you to ask—and I don’t want the answer that it was a sexual concern, but there had been a concern of the complaint concerning the safety of whoever the child is.  It shouldn’t matter for the purpose of rebutting what he was trying to say, whether it was a sexual complaint, a physical complaint, a mental complaint, the rebuttal is sufficient if it says that she’s concerned about there was a complaint, that there were some problems with—I mean, I don’t know what her concern is, so I’m not trying to tell her what the concern is and involved whatever somebody did. . . . I’m going to let that answer come in and I’m not going to let you go into any details, but the thrust of her testimony was that she had counseled and been approved and I will allow that in to rebut what the thrust of that testimony was.  All right.

The State proceeded to cross-examine Scruggs.  Scruggs cited several concerns about the safety of the home environment, potential domestic violence, and physical discipline, to which defense counsel did not object.  The testimony continued:

Scruggs:  I explored with Mr. Love his relationship with his children from a previous marriage.

State:     Were you aware an open investigation was not resolved at that point?

Scruggs: I can’t remember.  I can’t really remember that.  In regards to what?

State:     Well, in your notes you had written that you had concerns about an open sexual assault investigation.

Scruggs: Yes, I was definitely concerned about that.

Defense: I’m going to object to leading her.  That goes against what the limine was.

Trial Court: Don’t lead the witness.

Defense: And it’s also a violation of what we talked about asking her as opposed to suggest.

Trial Court: It’s overruled.

State:     Your Honor, this is cross-examination.

Trial Court: You can finish.

State (to Scruggs):         So you were aware of an open sexual abuse allegation?

Defense: Judge, I’m going to object, once again, to—

Trial Court: Don’t lead the witness, counsel.

Defense: In the boundaries you set about going into it.

Trial Court: That’s sustained.  You made your point, counsel.  You may continue.

State (to Scruggs):         Did that concern you with Brenda Campbell as well because of her relationship?

Scruggs: I was concerned about, in terms of Brenda Campbell, that there were allegations that Mr. Love had sexually abused one of her daughters and that—

Defense:      I’m going to object to the witness going into things that you set as a boundary.

Trial Court: That’s overruled.  You may go ahead.

Scruggs: I was concerned with Mr. Love moving in with—buying a house with Brenda Love [sic] and there were allegations out there that Mr. Love had sexually abused one of Brenda Campbell’s children.  And there was another problem that occurred in regards to that because there was a CPS case open up on Ms. Campbell whereas CPS wouldn’t allow the kids to be placed with Ms. Campbell because of the allegations of sexual assault against Mr. Love.

At the close of Scruggs’s testimony, defense counsel moved for a mistrial on the basis that the State violated the motion in limine and the parameters that the trial court set for going into the motion in limine evidence.  The trial court denied the motion.

Defense counsel asked Scruggs a question that was targeted at whether she had any concerns after M.G.L. began living with Love.  He pursued his objection to Scruggs’s answer and obtained a favorable ruling from the trial court on the boundaries of Scruggs’s testimony on cross-examination.  The trial judge then reversed her ruling during cross-examination.  Defense counsel, therefore, did not open the door to the information that Scruggs revealed on cross-examination or perform deficiently.  To the extent the trial court erred in her rulings, Love does not appeal those rulings. We note, however, that Scruggs’s testimony is cumulative of other evidence elicited later in the trial about the complaint from Specks, who alleged that Love attempted to sexually assault her when she lived in the home.

Love further complains that even calling Scruggs as a witness at all constitutes ineffective assistance of counsel.  The Court of Criminal Appeals has held that an “undoubtedly risky” trial strategy that ultimately does not pay off is not necessarily unacceptable or “wholly unjustified.”  See Delrio v. State, 840 S.W.2d 443, 446–47 (Tex. Crim. App. 1992) (per curiam).  Defense counsel risked the possibility that Scruggs would testify about her concerns regarding placing M.G.L. with Love.  However, Scruggs also provided favorable testimony about Love’s compliance with CPS’s requirements for obtaining custody of M.G.L. and the fact that she did not have any concerns after CPS placed M.G.L. with Love. Defense counsel took a risk in calling Scruggs as a witness.  Just because that strategy did not pay off in the way counsel intended does not mean counsel rendered ineffective assistance.  Love did not move for new trial; thus, the record is silent on defense counsel’s reasoning for calling Scruggs.  If the trial record is silent as to the reasons defense counsel called a witness or pursued a line of questioning that opened the door, we cannot conclude that defense counsel’s decision falls below an objective standard of reasonableness. See Johnson v. State, 137 S.W.3d 777, 779 (Tex. App.—Waco 2004, pet. ref’d) (holding that when record does not disclose counsel’s reasoning behind questioning defendant about juvenile boot camp experiences, which opened door to State’s cross-examination on juvenile criminal history, court could not conclude counsel’s performance fell below objective standard of reasonableness).

Love further contends that defense counsel rendered ineffective assistance because he inadequately prepared Love for testifying, as evidenced by Love’s testimony that he had never assaulted M.G.L. “or no other [sic] child,” which opened the door for the State to call Specks to testify about her allegations.  Love relies on Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.—El Paso 1999, pet. ref’d), for the proposition that an attorney may be ineffective for failing to prepare a client to testify by not warning him that he could open the door to his prior criminal history.  Unlike here, the Perrero trial court held a hearing on the defendant’s motion for new trial, at which defense counsel testified that he believed that he was negligent in not preparing Perrero to avoid opening the door to his prior criminal history during his testimony.  Id.  Love, however, presents no evidence to substantiate his argument that counsel did not advise him of the possible consequences of testifying, including the possibility that it could open the door to evidence of other criminal conduct, and no support exists in the trial record.  The right to testify is personal to the defendant.  Johnson v. State, 169 S.W.3d 223, 232, 235 (Tex. Crim. App. 2005) (citing Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 2709 (1987)).  The defendant possesses the ultimate authority to decide whether to invoke the right.  Id. at 236.  Love chose to invoke that right, and nothing in the record on direct appeal supports a claim that defense counsel failed to prepare him for his testimony or warn him of the consequences of testifying on his own behalf.  Without a record on these matters, nothing supports a conclusion that counsel’s representation fell below a reasonable professional standard.

Conclusion

We affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

Do Not Publish.  Tex. R. App. P. 47.2(b).

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[1] In Love’s brief, counsel cites to a question where defense counsel asked about Fletcher and M.G.L.’s relationship and asked if M.G.L. could “trust telling [Fletcher] things.” Defense counsel was not asking whether Mrs. Fletcher could trust what M.G.L. told her, but whether M.G.L. trusted Fletcher enough to tell her things.  Fletcher responded, “Oh, yes.”

[2] Love also argues that the State opened the door to evaluating M.G.L.’s truthfulness by saying during opening statements that she was telling the truth.  Love relies on Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008), for this contention. In Bass, the Court of Criminal Appeals held that a defense opening statement may open the door to the admission of extraneous-offense evidence to rebut a defensive theory expressed in opening statement.  Id. at 558.  The opening statement in Bass made a broad allegation that the complainant’s allegations were “pure fantasy” and “pure fabrication” and “contrary to [appellant’s] character.”  Id.  Love argues that, here, the State’s opening statement that the jury would hear the truth was not materially different than Bass’s opening statement that the complainant was lying.  We need not address this contention because both Fletcher and Campbell testified about M.G.L.’s propensity for truthfulness without an objection from the State.

[3] Texas Rule of Evidence 705 provides that an expert may be required to disclose any underlying facts or data that form the basis of her opinion.