Ausbon Osborne v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00156-CR
AUSBON OSBORNE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1316584R, Honorable George W. Gallagher, Presiding
May 29, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Ausbon Osborne appeals from his conviction by jury of two counts of
aggravated sexual assault of a child,1 one count of indecency with a child,2 and one
count of injury to a child3 and the resulting sentences of thirty-five years of imprisonment
for the aggravated sexual assault convictions, twenty years for the indecency
1
TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West 2013).
2
Tex. Penal Code Ann. § 21.11(c) (West 2013).
3
TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (West 2013).
conviction, and ten years for the injury conviction.4 He presents nine points of error.
We will affirm.
Background
After appellant plead not guilty to each of the four offenses set forth in the
indictment, the case was tried to a jury. The indictment indicates each of the four
offenses allegedly occurred around the same time. The complainant is one of
appellant’s several children. By the time of trial, the complainant was in the sixth grade.
While she attended some special education classes, her testimony demonstrated no
particular difficulty in communication.
The complainant testified that when she was in the fourth grade, she told her
teacher appellant had “raped” her. The teacher testified that she asked the complainant
what happened and the child gave more details, telling the teacher of an instance on
which her father sexually assaulted her by penile penetration. Complainant repeated her
statements in a generally consistent manner to others, including investigators with child
protective services, a forensic interviewer and a sexual assault nurse examiner.
Complainant testified at trial to the same incident. Complainant also testified at trial to
other instances in which appellant put his finger inside her “private part.”
Appellant did not testify at trial. A detective and two child protective services
investigators5 investigating complainant’s allegations testified appellant admitted to
4
The sentences run concurrently.
5
During the course of the investigation into complainant’s allegations against appellant, the first
investigator retired and the second investigator continued the inquiry into these allegations. Both testified
at trial.
2
some unusual conduct with complainant. A detective testified that during an interview
with appellant, appellant denied touching the complainant’s “private parts” but told him
he had looked at the child’s “opening”6 to “check” her for sexual activity because he
believed she was having sex with older boys and might be pregnant or in need of
medical care or birth control. The investigators testified appellant made similar
statements to them. The first investigator also testified appellant admitted he
penetrated complainant while “checking” her but said he did so only to determine
whether she was sexually active. The second investigator testified appellant denied
digital penetration. A detective testified appellant also stated complainant was a liar.7
The jury found appellant guilty as charged for each offense and assessed
punishment as noted. Appellant subsequently filed a motion for new trial alleging
ineffective assistance of counsel. The trial court held a hearing on appellant’s motion
during which it heard the testimony of appellant’s counsel and considered documentary
evidence. The motion for new trial was overruled by operation of law. This appeal
followed.
Analysis
Sufficiency of the Evidence
In appellant’s first five points of error, he challenges the sufficiency of the
evidence to support each of his convictions.
6
The prosecutor clarified the “opening” of which appellant spoke was the complainant’s vagina.
7
Complainant made an allegation of sexual abuse against another male. During punishment,
other witnesses, including the mother of some of appellant’s other children, concurred that complainant
frequently lied.
3
Standard of Review
In reviewing issues of legal sufficiency, an appellate court views the evidence in
the light most favorable to the verdict to determine whether, based on that evidence and
reasonable inference therefrom, a rational jury could have found each element of the
offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim.
App. 2010); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). If, given all of the evidence, a
rational jury would necessarily entertain a reasonable doubt of the defendant's guilt, due
process requires that we reverse and order a judgment of acquittal. Swearingen, 101
S.W.3d at 95 (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992)).
We measure the sufficiency of the evidence against the elements of the offense as
defined by the hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234 (Tex. Crim. App. 1997).
Aggravated Sexual Assault of a Child
By count one of the indictment, appellant was alleged to have, on or about the
29th day of July 2009, “intentionally or knowingly cause[d] the penetration of the female
sexual organ of [complainant], a child younger than 14 years of age who was not the
spouse of the defendant, by inserting his finger into her female sexual organ.” Count
two of the indictment alleged appellant, on or about the same date, “intentionally or
knowingly cause[d] the penetration of the female sexual organ of [complainant], a child
4
younger than 14 years of age who was not the spouse of the defendant, by inserting his
penis into her female sexual organ.”
To prove aggravated sexual assault, the State must show (1) appellant
intentionally or knowingly (2) caused the penetration of the anus or sexual organ of a
child by any means and (3) the child was younger than fourteen years of age. TEX.
PENAL CODE ANN. § 22.021 (West 2013). Under Texas law, the uncorroborated
testimony of a child victim, standing alone, is sufficient to support a conviction for
aggravated sexual assault under section 22.021. Tran v. State, 221 S.W.3d 79, 88 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref'd); Jensen v. State, 66 S.W.3d 528, 533-34
(Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). Because appellant does not contest
the evidence of complainant’s age, we address only the first two elements of the
offense.
At trial, complainant testified to each of the elements of aggravated sexual
assault as described in counts one and two. She testified that one day, as appellant
was about to take some of the children to Chuck E. Cheese, appellant called
complainant inside from the car to help him find a shirt. She found one and brought it to
him. “He laid me on the couch, and I tried to get up off the couch so I couldn't, and
that's when I started hollering, and that's when he pulled down my pants, and I tried to
pull them back up, and I couldn't so I just left it alone. And he wrapped my leg up and he
wrapped my arm up and he had pulled my panties down, and then he put his stuff at
me.”8 She stated, “[h]e had sticked it in me, and he said if it hurt, that means you been
8
At trial, the prosecutor clarified with complainant that by her use of the word “stuff” in this
context, she was referring to appellant’s penis.
5
doing something. And if it don't, you haven't. And I said it hurt, and he said, yeah, I've
been doing something.” The complainant also testified to another instance in which
appellant placed his finger inside her “private part” to “check” her.
The detective and investigators testified to statements made to them by appellant
that he “checked” complainant on a day before he took his children to Chuck E. Cheese.
He also admitted to one investigator to “checking” the complainant on other occasions.
The investigator testified appellant admitted to digital penetration of the complainant
while “checking” her for sexual activity. The forensic interviewer testified the
complainant told her appellant “checked” her by “put[ting] his privacy to her privacy” and
by “putting his fingers in her privacy.” The complainant’s teacher testified the child told
her that her daddy “raped” her.
Appellant argues the hypothetically correct jury charge in this case would include
consideration of the medical-care defense, because he was “checking” complainant for
suspected sexual activity and its consequences. The Texas Penal Code provides for a
medical-care defense to charges of sexual assault and aggravated sexual assault. See
TEX. PENAL CODE ANN. §§ 22.011(d); 22.021(d) (West 2013). “It is a defense to
prosecution . . . that the conduct consisted of medical care for the child and did not
include any contact between the anus or sexual organ of the child and the mouth, anus,
or sexual organ of the actor or a third party.” Cornet v. State, 417 S.W.3d 446, 447
(Tex. Crim. App. 2013).
Malik provides that a hypothetically correct jury charge is one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily restrict the State's
6
theories of liability, and adequately describes the particular offense for which the
defendant was tried. Malik, 953 S.W.2d at 240. As to defenses, a hypothetically correct
jury charge does not include any and all potential defensive issues but only those
applicable to the case. See Cornet v. State, 359 S.W.3d 217, 228 (Tex. Crim. App.
2012) (trial court erred by refusing medical care defensive instruction). A “defensive
issue” is not “applicable to the case” unless the defendant timely requests the issue or
objects to the omission of the issue in the jury charge. Tolbert v. State, 306 S.W.3d
776, 780 (Tex. Crim. App. 2010). And, the question whether to include a defensive
issue is a strategic decision “generally left to the lawyer and the client.” Golston v. State,
No. 06-11-00136-CR, 2012 Tex. App. LEXIS 5251, at * 21 (Tex. App.—Texarkana June
29, 2012, pet. ref’d) (mem. op., not designated for publication) (quoting Posey v. State,
966 S.W.2d 57, 63 (Tex. Crim. App. 1998)). Appellant did not ask for its inclusion and
therefore, the medical-care affirmative defense is not to be considered here in the
evaluation of the sufficiency of the evidence to support appellant’s convictions for
aggravated sexual assault of a child.
There is no requirement that physical, medical or other evidence be proffered to
corroborate the complainant’s testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.07
(West 2011); Wallace v. State, No. 07-09-00099-CR, 2011 Tex. App. LEXIS 1384 (Tex.
App.—Amarillo Feb. 23, 2011, no pet.) (mem. op., not designated for publication) (citing
Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (concluding that victim's
testimony alone is sufficient evidence of penetration in prosecution for aggravated rape,
without medical, physical, or other evidence)). We find the evidence sufficient to support
7
appellant’s convictions under counts one and two of the indictment for aggravated
sexual assault of a child. We overrule appellant’s second, third and fifth points of error.
Indecency With a Child
To prove indecency with a child as alleged in count three of the indictment, the
State was required to prove appellant, with a child younger than 17 years of age,
whether of the same or opposite sex, engaged in sexual contact. TEX. PENAL CODE ANN.
§ 21.11(a) (West 2013). “Sexual contact” includes, if committed with the intent to arouse
or gratify the sexual desire of any person, any touching by a person, including touching
through clothing, of the anus, breast, or any part of the genitals of a child. TEX. PENAL
CODE ANN. § 21.11(c) (West 2013).
Appellant argues the evidence was insufficient to show he acted with the
requisite mens rea because he was engaging in a parental purpose by “checking”
complainant. Intent to arouse or gratify can be inferred from conduct, remarks and
surrounding circumstances. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—
Texarkana 2006, pet. ref’d). The jury was free to believe or disbelieve any portion of the
testimony and, as evinced by the verdicts here, chose to believe the version of the
events expressed by complainant at trial. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.
Crim. App. 1997); see Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (the
trier of fact may believe witness even though his testimony is contradicted).
The complainant testified appellant touched her genitals with his finger. An
investigator testified appellant acknowledged at one point that he did penetrate the
complainant’s genitals. The jury had before it also testimony from the detective and two
8
investigators that appellant said he “checked” the complainant to see if she was
sexually active. Appellant argues these statements show he did not engage in sexual
contact with the complainant to arouse or gratify his sexual desire but rather had a
parental purpose for doing so. But, the jury also had before it the complainant’s
testimony that appellant had previously penetrated her with his penis for the ostensible
purpose of “checking” her for sexual activity. If the jury believed this testimony and did
not believe the penile penetration was for a parental purpose, it was free to infer
appellant engaged in the other acts of penetration for the purpose of arousing or
gratifying his sexual desire. See, e.g., Abbott v. State, 196 S.W.3d 334, 341 (Tex.
App.—Waco 2006, pet. ref'd) (jury can infer intent to arouse or gratify sexual desire from
defendant's act of touching child's genitals and commission of same conduct on other
occasions is additional evidence of that intent). The jury did not have to believe
appellant’s parental purpose explanation and could have convicted appellant based on
the testimony of the complainant and other witnesses. Sharp, 707 S.W.2d at 614. The
evidence was sufficient to support appellant’s conviction for indecency with a child and
we overrule appellant’s fourth point of error.
Injury to a Child
A person commits the offense of injury to a child if he, by act, intentionally,
knowingly, recklessly, or with criminal negligence causes bodily injury to a child under
the age of fourteen. TEX. PENAL CODE ANN. § 22.04(a)(3) (West 2013). “Bodily injury”
means physical pain, illness, or any impairment of physical condition. TEX. PENAL CODE
ANN. § 1.07(8) (West 2013). Injury to a child is a result-oriented offense requiring a
mental state that relates not to the charged conduct but rather to the result of the
9
conduct. Baldwin v. State, 264 S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2008,
pet. ref’d).
Count four of the indictment in this case alleged appellant committed the injury to
complainant intentionally or knowingly. Appellant challenges only the evidence
supporting his intent or knowledge of causing bodily injury. He argues that “[i]n a
rational sense, the evidence at most demonstrated negligence or recklessness with
respect to the possibility of bodily injury,” not intent or knowledge as to causing bodily
injury. He asserts the evidence could not have shown he acted with intent or
knowledge because he was conducting this action with the parental purpose of
“checking” complainant for sexual activity with boys.
Complainant testified at trial that appellant penetrated her “private part” with his
finger and that it hurt because of his “long nails” and that “his bone hurt.” The sexual
assault nurse examiner testified that touching a young girl’s hymen is painful for the girl.
Complainant testified appellant had previously used his penis to penetrate her and told
her that if it hurt, this meant she was sexually active. The forensic investigator testified
complainant made those same statements to her. Thus, if believed by the jury, the jury
heard from complainant that appellant at least knew penetration of the complainant’s
female sexual organ by his penis caused injury to her. The jury heard testimony that
appellant made statements that he was “checking” the complainant and, if they believed
he penetrated her with his finger on any of those occasions, the jury could have inferred
he did so with the intent or knowledge that he would injure the complainant because he
knew penetration injured her. The jury was free to infer from this testimony that
10
appellant acted with more than recklessness or negligence when he penetrated
complainant’s sexual organ with his finger. Sharp, 707 S.W.2d at 614.
From this evidence, the jury could have reasonably concluded appellant
intentionally or knowingly inflicted bodily injury on the complainant. We resolve
appellant’s first point of error against him.
Ineffective Assistance of Counsel
In appellant’s remaining four points of error, he contends he received ineffective
assistance of counsel during the guilt-innocence phase of his trial and the trial court
erred in allowing his motion for new trial regarding his counsel’s assistance to be
overruled by operation of law.
We defer to the trial court's right to weigh the credibility of the testimony at the
hearing on the motion for new trial. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.
Crim. App. 2001). “Because the trial judge is the sole judge of the credibility of the
witnesses, a trial court does not abuse its discretion by denying a motion for new trial
based on conflicting evidence.” Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—
Corpus Christi 2011, pet. ref’d). In assessing the evidence presented at the new trial
hearing, the trial court, sitting as the trier of fact, may also consider the interest and bias
of any witness. Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.]
1988, pet. ref'd) (per curiam) (citing Costello v. State, 98 Tex. Crim. 406, 266 S.W. 158
(Tex. Crim. App. 1924)). Deference to the trial court is required even if we would weigh
the testimony differently than did the trial court. Salazar, 38 S.W.3d at 148. Thus, we
review the evidence in the light most favorable to the trial court's ruling and presume all
11
reasonable findings that could have been made against the losing party were so made.
Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d); Acosta v. State, 160 S.W.3d 204, 210 (Tex. App.—Fort Worth 2005, no pet.).
Only when no reasonable view of the record could support the trial court's ruling do we
conclude the trial court abused its discretion by denying the motion for new trial. Holden
v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
The trial court's determination of a motion for new trial on the ground of
ineffective assistance of counsel is a matter entirely within the trial court's discretion.
Cueva, 339 S.W.3d at 856-57. Therefore, under the facts of this case, we will review the
prongs of Strickland v. Washington through this abuse of discretion standard of review,
reversing only if the trial court's decision was arbitrary or unreasonable. Id. at 857. To
establish ineffective assistance of counsel, appellant must show: (1) his attorney's
representation was deficient; and (2) there is a reasonable probability that, but for his
attorney's errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Salinas v.
State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Cueva, 339 S.W.3d at 857. “An
appellant's failure to satisfy one prong of the Strickland test negates a court's need to
consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009). Because Strickland's first prong is dispositive of this point, we will limit our
analysis to that prong. See TEX. R. APP. P. 47.1.
“Decisions rooted in strategy do not constitute deficient performance. Unless a
defendant can show in the record that counsel's conduct was not the product of a
strategic decision, a reviewing court should presume that trial counsel's performance
12
was constitutionally adequate unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.” Cueva, 339 S.W.3d at 857-58 (citations
omitted). Appellant’s trial counsel testified at the hearing on appellant’s motion for new
trial. The court also admitted for consideration several documents, including a copy of
the motion for new trial; affidavits from appellant, appellant’s girlfriend and appellant’s
sister; a transcription of a recording of a conversation between the complainant and
appellant’s sister; a transcription and DVD copy of the forensic interview of complainant;
a copy of an indictment and judgment against complainant’s mother’s former boyfriend,
and a transcription of appellant’s girlfriend’s grand jury testimony. The trial court took
the matter under advisement. Appellant’s motion for new trial was later overruled by
operation of law.
In his motion for new trial and on appeal, appellant contends his counsel was
ineffective in several ways: (1) trial counsel had trouble hearing the testimony during
trial; (2) he left at his office the only copy of a video where complainant recanted; and
(3) he failed to call a member of appellant’s family who would have contradicted basic
elements of complainant's testimony. He further argued, “[i]n the alternative, [appellant]
would submit that trial counsel erred at sentencing by failing to present adequate
mitigation evidence and by failing to adequately dispute the sentencing allegations.” On
appeal, appellant includes a number of additional complaints about his counsel.
At the hearing, counsel was asked whether he has hearing problems and had
them during trial. He answered, “Probably so. I know I had to ask witnesses numerous
times to repeat what they were saying. And some of the times when they would repeat
it, I wasn't really sure that I knew exactly what they were saying. My cross-examination
13
seemed to flow, and it appeared to me as I was asking the questions that I did
understand it, but I don’t really know.” During cross-examination, counsel answered
affirmatively when asked if he was able to communicate with appellant, witnesses and
family members. On appeal, the State points out several instances during trial in which
counsel asked a witness to repeat an answer and incorporated the answer into his next
question, indicating he heard and understood the witness. We agree with the State’s
assessment.
We acknowledge appellant’s argument on appeal his counsel was ineffective for
failing to request a continuance due to his hearing issues. However, this was not
explored at the hearing on appellant’s motion for new trial and the record is silent on this
point. We must assume counsel made a strategic decision not to ask for a continuance
due to his hearing issues. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)
(stating counsel should ordinarily be accorded opportunity to explain actions before
being condemned as unprofessional and incompetent).
Appellant next complains of counsel’s failure at trial to offer into evidence a
particular video. Counsel also testified he was aware prior to trial of the video appellant
claims he should have offered at trial. He told the court, “I decided not to use it, and I
could see that it would go either way. On the one hand, the child is saying something
contrary to what she says in court. On the other hand, she's in a public place with
someone asking her kind of leading questions about things that she would not want to
admit around other people, I would imagine. And I felt like if we did that, it may be more
damaging than helpful. I tried to cover the situation through cross-examination.” On
cross-examination at the hearing he agreed the decision was one of strategy. Counsel
14
is not required to perform flawlessly, and ineffectiveness is not established solely by the
fact that a different trial strategy may have been pursued by another attorney in
hindsight. Muennink v. State, 933 S.W.2d 677, 680 (Tex. App.—San Antonio 1996, pet.
ref'd); see Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (“The mere
fact that another attorney might have pursued a different tactic at trial does not suffice to
prove a claim of ineffective assistance of counsel,” cert. denied, 133 S. Ct. 834 (2013)).
We cannot find counsel provided ineffective assistance on this point.
Counsel also testified about his decision to refrain from calling appellant’s sister
as a witness. He stated, “I had had a discussion with the Defendant and we decided
not to do that. It was a little bit of a value judgment, you might say, in how [appellant’s
sister] might appear on the stand, if she were to become overly outgoing or not. And I
just decided that it would probably be better not to.” He further testified, “I concluded
that she was -- it was a little bit unpredictable as to what sort of emotional state she
would be in and how she would respond to direct and cross.” He also testified he
decided not to call appellant’s girlfriend because he believed “at the time that it would be
counterproductive to do so.” During cross-examination at the hearing, he told the court
he and appellant discussed it and “jointly decided not to” call the girlfriend, although he
could not recall the reasoning behind the decision. He did say he would “possibly” call
the girlfriend if he had the trial to do over again, given the possibility of her testimony
contradicting the complainant’s version of events. We cannot say counsel’s decisions
were not reasonable or that he was deficient for making those choices. See James v.
State, 997 S.W.2d 898, 902 (Tex. App.—Beaumont 1999, no pet.) (trial counsel's failure
15
to call every witness requested by defendant is irrelevant absent evidence defendant
would have benefitted from testimony).
Appellant complains of counsel’s decisions regarding objections and introduction
of certain evidence. We agree with the State that to the degree appellant is arguing his
counsel should have objected to multiple outcry witnesses, such an objection would
have been improper. A teacher testified at trial to complainant’s outcry of appellant’s
penile penetration while an investigator testified to her outcry of appellant’s digital
penetration. The outcry statute is event-specific, not person-specific, and there can be
multiple outcry witnesses. Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana
2000, pet. ref’d). Because the teacher and the investigator described different events,
the testimony of both was admissible. The sexual assault nurse examiner testified to
statements made to her for purposes of medical diagnosis or treatment. See TEX. R.
EVID. 803(4). As to appellant’s complaints that his counsel failed to utilize the forensic
interview and phone calls of complainant to a greater degree, counsel’s testimony at the
hearing on the motion for new trial indicates his decision was again one of strategy.
Thus, appellant has not demonstrated that counsel performed “below an objective
standard of reasonableness” on this basis.
We reach the same conclusion concerning counsel’s decisions regarding the
punishment phase of appellant’s trial. Counsel noted he thought about his approach to
punishment but did not believe “it would be particularly helpful” to call members of
appellant’s family or other witnesses to testify during punishment or to present evidence
of appellant’s potential mental illness. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.
App. 2010) (also noting failure to call witnesses at the guilt-innocence and punishment
16
stages is irrelevant absent a showing that such witnesses were available and appellant
would benefit from their testimony).
Appellant further contends his trial counsel was ineffective because he failed to
request a medical defense instruction to show his parental purpose in “checking”
complainant. The medical-care defense is one of confession and avoidance. Cornet,
359 S.W.3d at 224-25; Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013). A
defendant claiming entitlement to this defense must admit to each element of the
offense, including both the act and the requisite mental state. Villa, 417 S.W.3d at 462.
When the defensive evidence does no more than attempt to negate an element of the
offense, a defendant is not entitled to a defensive instruction on any defense subject to
the confession-and-avoidance doctrine. Id. (citing Shaw v. State, 243 S.W.3d 647, 659
(Tex. Crim. App. 2007)). An instruction on a confession-and-avoidance defense is
appropriate only when “the defendant's defensive evidence essentially admits to every
element of the offense, including the culpable mental state, but interposes the
justification to excuse the otherwise criminal conduct.” Id. Given the state of the law
and appellant’s denial that he touched complainant9 while “checking” her, the defense
was inapplicable here and counsel was not ineffective for failing to request it.
Appellant also complains that his counsel elicited testimony regarding appellant’s
presence at complainant’s school just before trial. At the hearing, counsel testified he
chose to elicit this testimony because he believed the State would introduce it as
evidence that appellant was attempting to intimidate complainant. His strategy was to
9
As noted, an investigator testified appellant admitted he penetrated complainant on one
occasion. But, evidence showed, appellant on another occasion denied he made this statement.
17
introduce it first. Again, appellant has not demonstrated that counsel performed “below
an objective standard of reasonableness” on this basis.
We conclude appellant has failed to show any of the complained-of acts and
omissions by his counsel fell below an objective standard of reasonableness.
Accordingly, the trial court did not abuse its discretion in allowing appellant’s motion for
new trial to be overruled by operation of law. We overrule appellant’s sixth, seventh,
eighth and ninth points of error.
Conclusion
Having overruled each of appellant’s nine points of error, we affirm the judgment
of the trial court.
James T. Campbell
Justice
Do not publish.
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