Laurence Lee Cano v. State ( 2007 )

Opinion of July 17, 2007 Withdrawn; Affirmed and Substitute Memorandum Opinion filed October 4, 2007

Opinion of July 17, 2007 Withdrawn; Affirmed and Substitute Memorandum Opinion filed October 4, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00377-CR

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LAURENCE LEE CANO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 42,716-1

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

We withdraw the opinion issued July 17, 2007 and substitute the following opinion.

A jury convicted appellant Laurence Lee Cano of sexual assault and sentenced him to ten years= probation and a $10,000 fine.  Appellant thereafter filed an application for writ of habeas corpus, alleging he received ineffective assistance of counsel at trial, which the trial court denied.  In a single issue, appellant challenges the denial of his application for writ of habeas corpus.

Background

At appellant=s trial, the State called five witnesses.  The complainant testified that between 9:30 and 10:00 a.m. on the morning of Tuesday, May 22, 2001, as she parked in front of her apartment in Sweeny, Texas, appellant, a bread truck driver who also owned and managed her apartment complex, parked behind her and told her he needed to speak with her.  After the complainant went inside her apartment and changed clothes, she let appellant inside.  The complainant showed appellant painting she had done in the apartment, a rotting board in her bathroom, and mildew on a wall in her bedroom.  She claimed appellant then threw her on the bed, sat on top of her legs, and told her he Ahad a rubber,@ to which she replied that she did not care.  Despite her pleas to stop, appellant then pulled her shorts to the side and penetrated her vagina with two of his fingers.  As appellant stood up to undress himself, the complainant went to the front door.  Appellant told her Anot to tell anybody,@ and she then left for her parents= house.  According to the complainant, appellant came by her parents= house a week later and asked whether she had told anyone about the incident and if she was mad at him.  She said no, and he left.  She further testified that, at the direction of Chief Gary Stroud of the Sweeny Police Department, she informed appellant=s wife about the incident.

On cross-examination, as part of the defense=s theory that the complainant falsely accused appellant of sexual assault because she was angry with him for evicting her, appellant=s trial counsel asked the complainant if she was ever served with an eviction notice or told to move out.  She responded negatively.  In voir dire examination outside the presence of the jury, counsel also attempted to impeach the complainant with questions regarding prior false accusations of sexual misconduct she allegedly made against three other men:  her brother, a man named Joshua Dudley Roberts, and an unnamed man she encountered at a convenience store in Sweeny.  The complainant maintained that the allegations against her brother were true, that she remembered the incident with Roberts and he may have received a Acitation,@^[1] and that she did not recall making the allegation about the third man.  The trial court precluded counsel from cross-examining the complainant about the allegations because counsel failed to prove their falsity.  Trial counsel did not further pursue these allegations.

The State thereafter called the complainant=s mother and husband to establish that the complainant was upset both after the alleged incident and after speaking with appellant a week later and to confirm that no eviction notice was ever issued to the complainant.  The State also called Miranda Ballard, who testified over objection that, in the early morning hours of October or November 2001, after she stopped on the side of the road in response to his flashing headlights, appellant improperly touched her breast and asked to perform sex acts on her in the back of his bread truck.  On cross-examination, Ballard stated that she filed a police report regarding the incident but did not file charges because she wanted to avoid the Ahassle.@  Appellant=s counsel did not attempt to elicit a motive or bias or otherwise impeach Ballard.^[2] The State finally called Constable Willie Howell, appellant=s relative by marriage, who testified that appellant told him the complainant approached him sexually while he performed maintenance on her bathroom and that he digitally penetrated her vagina with consent.  Appellant responded that Constable Howell must have misunderstood his statements and that he simply told the constable about the allegation and that it was false. 

Appellant=s counsel called a number of witnesses, each supporting the defense=s theories that the complainant fabricated her story as revenge for her eviction and that appellant was on his bread route at the time of the incident.  Appellant testified that he left an eviction notice with the complainant the last week of May 2001 when she was not home. He also denied sexually assaulting the complainant and claimed he was at work at the time of the incident.  However, appellant later stated that he could not recall where he was at the time of the incident.  Appellant recalled discussing the complainant=s painting in her apartment in early May 2001, but could not recall whether he observed or repaired a mildewed wall or rotten board there.  Appellant also offered a different version of his encounter with Ballard.  He denied assaulting her, claiming that he flashed his lights at her while on his bread route because he thought she was driving drunk and then agreed to follow her home.  Appellant further testified that, before the time of the alleged incident, he visited the complainant=s parents= house to discuss repair work they were to complete on property managed by appellant, but he could not describe what visible disability the complainant=s father had.  The complainant=s mother testified on rebuttal that appellant never made such a visit and noted that her husband had lost an arm.

Trial counsel thereafter elicited, through testimony from appellant=s son, his wife, and two of his co-workers, that complainant was evicted, the rear area of bread trucks like appellant=s are very full when stocked for daily deliveries,^[3] most bread routes end between 12:00 and 3:00 p.m., and Tuesdays are Alonger days@ for drivers. Appellant=s wife additionally testified that the complainant told her that appellant called her several times and Ac[ame] onto her,@ which she claimed found no support in their phone records.  Appellant=s wife, however, admitted she did not know the complainant=s number and simply looked for long distance calls to Sweeny and found none.  Counsel further called Chief Stroud, who testified that, although the complainant discussed with him whether she should talk to appellant=s wife about the alleged incident, he never instructed the complainant to do so.  Counsel finally called James McCabe, another of appellant=s relatives by marriage, who testified that appellant told him that one of his tenants had falsely accused him of sexual assault to ruin his family or extort money from him because he was her landlord.

After the jury convicted appellant and sentenced him to probation, appellant filed an application for habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure, alleging he received ineffective assistance of counsel at trial and attaching in support affidavits from trial counsel and various other parties.  Appellant pointed to the following mistakes or omissions of trial counsel:  (1) failure to discover and present impeachment evidence, including testimony of the complainant=s three ex-boyfriends and Chief Stroud, (2) failure to file a motion in limine or object to evidence that appellant fathered an illegitimate child, (3) failure to file a motion in limine or object to appellant=s wife=s attempt to dissuade her sister from testifying against appellant, (4) failure to file a motion in limine or object to evidence that appellant was fired from his position as a police officer fifteen years ago for filing a false report, and (5) referring to the complainant as the Avictim@ when the defense=s theory was that no crime occurred.  After a hearing, the trial court found that, with the exception of failing to object to appellant=s dismissal for the false report, each of counsel=s actions were deficient.  However, the court found that there was no reasonable probability that, but for each of counsel=s failures, the results would have been different.  Thus, the court found trial counsel was not ineffective and denied appellant=s application.  This appeal followed.

Analysis

In reviewing the trial court=s decision to grant or deny a habeas application, we review the facts in the light most favorable to the court=s ruling and uphold it absent an abuse of discretion.  Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003).  We afford almost total deference to a trial court=s determination of the historical facts that the record supports, especially when the fact findings are based on an evaluation of credibility and demeanor.  Id.  We afford the same amount of deference to the trial judge=s application of the law to the facts, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Id.; see Ex parte Tarlton, 105 S.W.3d 295, 297 (Tex. App.CHouston [14th Dist.] 2003, no pet.). Where the resolution of those ultimate questions does not turn on credibility or demeanor of witnesses, we apply a de novo review standard. Ex parte Tarlton, 105 S.W.3d at 297.  Here, where the trial court=s decision was based at least in part on the credibility of competing affidavits, we review its decision under an abuse of discretion standard.  See Manzi v. State, 88 S.W.3d 240, 243B44 (Tex. Crim. App. 2002). Where the decision was based on an application of legal standards, we review the determination de novo.  See Ex parte Peterson, 117 S.W.3d at 819.

To prevail on a claim of ineffective assistance of counsel, appellant must prove both prongs of Strickland v. Washington, 466 U.S. 668, 687 (1984), by a preponderance of the evidence.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  First, appellant must prove that his counsel=s conduct was objectively deficient.  Ex parte McFarland, 163 S.W.3d 743, 753 (Tex. Crim. App. 2005).  In assessing this, we look to see if counsel was acting as Aa reasonably competent attorney@ would under the circumstances.  Id. Appellant has the burden of proof and must overcome a strong presumption that counsel=s performance fell within the wide range of reasonable professional assistance.  Id.  This highly deferential review is employed to avoid the distorting effect of hindsight.  Id.  Thus, appellant must show that his attorneys made errors so serious that counsel was not functioning as the Acounsel@ guaranteed the defendant by the Sixth Amendment.  Id.

Second, even if appellant can demonstrate that his counsel=s actions were objectively deficient, appellant must still prove that their deficient performance prejudiced his defense.  Id. at 754.  He must demonstrate that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Id. The Supreme Court has defined this Areasonable probability@ as a Aprobability sufficient to undermine confidence in the outcome.@  Id. (quoting Strickland, 466 U.S. at 694).

I.  Failure to Investigate

Appellant contends that trial counsel performed deficiently by failing to discover and present impeachment evidence relating to the complainant=s mental problems, false allegations of criminal conduct against others, and bad reputation for truthfulness.  Further, to the extent trial counsel relied exclusively on a private investigator to discover impeachment evidence, appellant maintains this also constitutes deficient performance.  Appellant reasons that requests or searches for public records relating to the complainant=s criminal complaint history would have revealed that she made false criminal allegations against three ex-boyfriends. Appellant notes that, based on their affidavits, the ex-boyfriends and Chief Stroud would have provided the following testimony to undermine her credibility:

1. Curtis Adams, a police officer who dated and lived with the complainant for six months in 2002, would have testified that she had mental problems, saw a psychotherapist, and made up stories of previous rapes because of these problems.  Adams would have further testified that she filed false police reports that he owed her money and pistol-whipped, sexually assaulted, beat, and harassed her.

2. Kenneth Joseph McAdams, who lived with the complainant shortly after March 2002 and had a child with her in 2003, would have testified that the complainant was unstable, received psychiatric treatment, and took psychotropic medications.  McAdams would have further testified that the complainant falsely accused him of failing to pay child support and has a reputation for being untruthful and vindictive. 

3.         John Hobbins, who dated the complainant in 2000, would have testified that the complainant, to exact revenge for their breakup, filed a false police report alleging that he stole her jewelry, which she later withdrew.  Hobbins would have also testified that the complainant has a reputation for being untruthful and untrustworthy.  

4. Chief Stroud would have testified that the complainant made numerous complaints to the police regarding the alleged criminal conduct of her boyfriends, most of which could not be substantiated or proved to be false.  He would have further testified that the complainant is untrustworthy, lacks good character, and has a reputation for being untruthful and vindictive.    

Trial counsel is charged with making an independent investigation of the facts of the case.  McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).  Ordinarily, counsel should not blindly rely on the veracity either of his client=s version of the facts or witness statements in the State=s file.  Id.  But the duty to investigate is not categorical; rather, Acounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.@ Id. (quoting Strickland, 466 U.S. at 691).  Indeed, though counsel may not Aslough[] off@ the duty to acquaint himself with the facts to an investigator, Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim. App. 1978), counsel is not required to investigate the facts of the case personally and may delegate the investigation to an investigator.  Callahan v. State, 24 S.W.3d 483, 486 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d).  Such a decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel=s judgments.  McFarland, 928 S.W.2d at 501.

We disagree that trial counsel=s investigation was deficient.  Appellant failed to demonstrate that counsel=s reliance on an investigator and overall failure to discover and call the enumerated witnesses to testify to the complainant=s mental problems, false accusations, and bad reputation for truthfulness were unreasonable.  Flores v. State, on which appellant relies for the proposition that reliance on an investigator can constitute deficient performance when neither party discovers evidence, is distinguishable.  See Flores, 576 S.W.2d at 634.  There, counsel=s investigation was held ineffective because he relied exclusively on an appointed investigatorCwho had previously shown ineptitude in the same caseCto conduct the entire factual investigation of the case and produce a report just before trial.  Id. at 633B34. Counsel admitted he failed to conduct a factual investigation or speak to any witnesses himself.  Id. at 633.  As a result, counsel never received a report from the investigator and went to trial Atotally unprepared.@  Id. at 634.  

Here, trial counsel relied exclusively on the investigator to discover evidence for only one factual aspect of his caseCimpeachment evidenceCand otherwise demonstrated adequate knowledge of the facts.  While he admitted the investigator=s efforts returned Ano useful information@ and that his reliance on the investigator was a mistake, the record reflects that either he or his investigator discovered three independent instances where the complainant allegedly falsely accused men of sexual misconduct.  In fact, counsel attempted, albeit unsuccessfully, to impeach the complainant on cross-examination with questions about these accusations.  Moreover, counsel instructed his private investigator to contact Officer Curtis Adams, although she ultimately failed to do so.^[4]  Counsel explained he was reluctant to subpoena Adams to testify if he did not know what his testimony would be.  Further, counsel attempted to impeach the complainant during trial in various ways, including eliciting Chief Stroud=s testimony that he never told her to contact appellant=s wife and pursuing the defensive theory that she was motivated by revenge for an eviction to fabricate the incident.  Counsel admittedly did not ask Chief Stroud about the complainant=s bad reputation but explained Chief Stroud Awas not helpful as his notes indicated he would be@ and Aseemed to have a selective memory.@ Therefore, under the circumstances, and applying the appropriate deference to counsel=s decisions, we do not find counsel=s reliance on an investigator and failure to discover and present the suggested impeachment evidence unreasonable or falling below an objective standard of reasonableness.  See McFarland, 928 S.W.2d at 501.  Compare Miranda v. State, 993 S.W.2d 323, 327 (Tex. App.CAustin 1999, no pet.) (declining to find ineffective assistance for inadequate investigation where, though he Acould have conducted a more thorough investigation,@ counsel was very familiar with facts of case and prepared with defenses, actively participated in trial through extensive cross‑examination of State=s witnesses to challenge State=s version of events, and called two defense witnesses to establish alibi defense), with Butler v. State, 716 S.W.2d 48, 55B56 (Tex. Crim. App. 1986) (holding counsel=s representation fell below objective standard of reasonableness where he completely failed to independently investigate additional alibi witnesses who would have provided far greater detail of alibi than alibi witness called).

Moreover, we do not find appellant has shown he was prejudiced by counsel=s failure to discover and call the enumerated witnesses because this failure did not preclude him from advancing his only viable defense at trial and because most of the witnesses= potential testimony would have been inadmissible.  We will not reverse a conviction unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced.  McFarland, 928 S.W.2d at 501.  Likewise, counsel=s failure to call witnesses is irrelevant absent a showing that appellant would have benefitted from their testimony.  See Butler, 716 S.W.2d at 55. Appellant=s only viable defense was not precluded because trial counsel substantially developed the defensive theory that appellant was on his bread route at the time of the incident, presenting supporting testimony from three witnesses.  Further, testimony from the ex-boyfriends and Chief Stroud concerning the complainant=s prior false accusations would not have benefitted his defense because it would not have been admissible. Texas Rule of Evidence 608 generally bars the use of specific instances of conduct to impeach a witness=s credibility, except to expose bias, correct a witness=s affirmative misrepresentations made on direct examination, or demonstrate lack of capacity.  See Tex. R. Evid. 608(b); Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997).  However, the Court of Criminal Appeals has held that the Confrontation Clause Amay require the admissibility of evidence that the Rules of Evidence would exclude.@ See Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000). Extraneous accusations will be admissible where the probative value outweighs any risk of admission.  See id.  For such accusations to have probative value in impeaching the witness=s credibility, and thus be admissible, a party must show the accusations were false and similar to the current accusation.  See id. at 226; Lempar v. State, 191 S.W.3d 230, 239 (Tex. App.CSan Antonio 2005, pet. ref=d). Simple denial testimony by the accused parties does not establish falsity, nor does the dismissal of or failure to pursue charges.  See Garcia v. State, 228 S.W.3d 703, 706 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d); Wheeler v. State, 79 S.W.3d 78, 87 (Tex. App.CBeaumont 2002, no pet.).

Appellant failed to show that the allegations by Adams, McAdams, Hobbins, and Chief Stroud of complainant=s false accusations of sexual and other criminal conduct meet a threshold of falsity or similarity to the current offense warranting admissibility under the Confrontation Clause.  Only Adams alleged that the complainant filed a false report for sexual misconduct.  However, aside from Adams=s own denial and a lack of official charges, there is no evidence that this specific accusation, even if made, was false. Each of the other allegations by Adams, McAdams, and Hobbins involve nonsexual conduct, dissimilar from the current accusation, the falsity of which are similarly supported only by their denials and lack of charges.  See, e.g., Lopez, 18 S.W.3d at 225B26 (holding that complainant=s prior allegation of physical abuse by his mother was inadmissible because defendant failed to shown falsity and similarity to current allegation that defendant forced complainant into sex acts).^[5] Additionally, though Chief Stroud asserted the complainant made several allegations of Acriminal conduct@ by boyfriends, most of which could not be substantiated or proved to be false, he did not specify whether such allegations involved sexual misconduct similar to the current allegation.  See id.

Finally, although testimony concerning complainant=s bad reputation for truthfulness would have been admissible, counsel gave strategic reasons for not calling Adams for any purpose and for not calling Chief Stroud as a reputation witness.  This left only two potential bad-reputation witnesses counsel failed to discoverCMcAdams and Hobbins, both ex-boyfriends who were involved in volatile relationships with the complainant and who would have likely been exposed to substantial cross-examination.  Under the circumstances, we cannot say appellant met his burden to show that, but for counsel=s failure to discover and call these two bad-reputation witnesses, the outcome of his trial would have been different.  See McFarland, 163 S.W.3d at 754.

Accordingly, we conclude the trial court erred in finding that counsel performed deficiently by relying on an investigator and otherwise failing to discover and present appellant=s suggested impeachment evidence regarding the complainant=s mental problems, false accusations, and bad reputation for truthfulness.  Counsel conducted a reasonable investigation to discover impeachment evidence using a private investigator, gave strategic reasons for not calling two of appellant=s suggested witnesses, and otherwise demonstrated an adequate knowledge of the facts.  We further conclude appellant has failed to demonstrate prejudice.  Counsel=s actions or omissions did not preclude appellant=s only viable defense, and, because most of the suggested evidence was inadmissible, appellant failed to show that such evidence would have benefitted his defense.^[6]

II.  Failures to Object

Appellant next complains trial counsel performed deficiently by failing to properly object to (1) appellant=s wife=s testimony that appellant fathered a child outside marriage,^[7] (2) appellant=s testimony that he was dismissed from his position as a police officer for filing a false report,^[8] and (3) appellant=s wife=s testimony that she attempted to dissuade her sister from testifying against appellant in the case.  Appellant contends that the evidence of his child outside marriage constituted improper character evidence under Texas Rule of Evidence 404(a)(1)(A) and the evidence of his dismissal from the police constituted improper impeachment evidence under Texas Rule of Evidence 608(b).  Appellant further argues that counsel failed to lodge a proper objection to appellant=s wife=s testimony about her attempts to dissuade her sister from testifying.  Appellant contends counsel should have objected on the basis that third parties= attempts to persuade a witness to avoid testifying are inadmissible absent a showing the defendant directed such attempts.  See Nader v. State, 86 Tex. Crim. 424, 428, 219 S.W. 474, 476 (Tex. Crim. App. 1920).

We conclude appellant failed to show that counsel acted deficiently in failing to object to this evidence.  As to appellant=s wife=s testimony that appellant fathered a child outside marriage, trial counsel explained he knowingly decided not to object after the State asked appellant=s wife a question, if he felt she had Ahandled the question.@  This court has previously found that avoiding objections to isolated, improper evidence in order to downplay the damaging effect of such evidence is sound trial strategy.  See Oliva v. State, 942 S.W.2d 727, 733 (Tex. App.CHouston [14th Dist.] 1997) (holding that counsel=s failure to object to State=s mischaracterization of prior conviction would have been sound strategy to avoid overemphasis of conviction), pet. dism=d improvidently granted, 991 S.W.2d 803 (Tex. Crim. App. 1998); cf. Richards v. State, 912 S.W.2d 374, 381 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d) (holding that, in attempted murder case, counsel=s failure to object to improper, isolated statement in jury argument about body found in piece of luggage was sound trial strategy because objecting could have caused jury to focus on violence of incident rather than alibi defense).^[9]

As to appellant=s testimony that he was fired from the police for filing a false report, counsel offered no strategic reason for failing to object.  However, the record reveals the State did not thereafter significantly pursue this evidence, and counsel gave appellant the opportunity on redirect examination to explain the false report, which at least somewhat rehabilitated appellant.^[10] See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (holding that isolated failures to object to improper evidence do not constitute ineffective assistance of counsel).  As such, trial counsel=s failure to object to this evidence did not constitute deficient performance.

Finally, as to appellant=s wife=s attempts to dissuade her sister from testifying, appellant=s wife  told her sister she would Anot have anything to do with@ her if she testified.  Appellant has failed to show that such evidence was inadmissible.  See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (holding that appellant must show that complained-of evidence was inadmissible to properly bring ineffective assistance claim based on counsel=s failure to object). Appellant correctly states that third parties= attempts to persuade a witness to avoid testifying are inadmissible against the defendant absent a showing the defendant directed such attempts.  See Nader, 86 Tex. Crim. at 428, 219 S.W. at 476.  However, when a testifying witness makes such attempts, they are admissible to impeach that witness=s credibility by showing motive, bias, or interest.  See id. at 427B28, 219 S.W. at 475B76. Therefore, evidence of appellant=s wife=s attempts to dissuade her sister from testifying against appellant were admissible to show bias, motive or interest and impeach her credibility.  Accordingly, because the challenged evidence was admissible, counsel was not deficient for failing to object to it.  See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992) (holding failure of trial counsel to object to admissible evidence does not constitute ineffective assistance of counsel).

In addition, appellant has failed to show he was prejudiced by these failures to object.  The failures were isolated in nature and involved relatively innocuous evidence.  See, e.g., Ex parte White, 160 S.W.3d 46, 54 (Tex. Crim. App. 2004) (holding that appellant failed to show reasonable probability of different outcome where counsel failed to object to evidence that murder victim was pregnant, which was irrelevant and highly prejudicial, because references to pregnancy were brief, not dwelled upon, and did not draw attention away from main issue of whether appellant ran over victims intentionally or mistakenly).   

III.  Referring to the Complainant as AVictim@

Finally, appellant complains trial counsel performed deficiently by referring to the complainant as the Avictim@ during cross-examination of Constable Howell.^[11] Trial counsel admitted such references were Aslips of the tongue@ and inconsistent with the defense that the complainant was untruthful and no crime occurred.  We conclude appellant has failed to demonstrate that counsel acted deficiently in this regard because, as with his failures to object, counsel=s references to the complainant as the Avictim@ were isolated.  See Ingham, 679 S.W.2d at 509.

Moreover, appellant has failed to demonstrate prejudice from these statements.  The term Avictim@ is relatively non-prejudicial, given that courts have held invocation of far stronger terms did not amount to reversible error.  See Byler v. State, No. 03‑01‑00012‑CR, 2002 WL 347753, at *3 (Tex. App.CAustin Mar. 7, 2002, pet. ref=d) (not designated for publication) (holding that counsel was not ineffective for failing to object to State=s characterization of complainant as Avictim@ and noting that courts have held reference to stronger terms such as Aslaughter,@ Athis killer,@ Asex slave,@ and Abutcher@ did not result in reversible error); see also Johnson v. State, No. 14‑04‑00406‑CR, 2005 WL 3065872, at *4 (Tex. App.CHouston [14th Dist.] Nov. 15, 2005, pet. ref=d) (not designated for publication) (holding that prosecutor=s reference to complainant as Avictim@ during voir dire did not constitute reversible error).

Conclusion

We conclude appellant failed to meet his burden to establish that trial counsel=s performance fell below an objective standard of reasonableness and a reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different.  Therefore, although we find the trial court erred in finding counsel rendered deficient performance in numerous respects, we conclude appellant has failed to demonstrate prejudice and that counsel thus did not provide ineffective assistance at trial.  Accordingly, we conclude that the trial court did not abuse its discretion in denying appellant=s application for writ of habeas corpus, and thus we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/         Leslie B. Yates

Justice

Judgment rendered and Substitute Memorandum Opinion filed October 4, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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

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^[1]  Outside the presence of the jury, the prosecutor told the trial court that Roberts was charged with misdemeanor offensive touching but failed to appear. 

^[2]  In addition to Ballard=s testimony, the State also sought to introduce testimony from appellant=s relative that appellant digitally penetrated her vagina when she was ten or eleven years old.  Appellant=s counsel objected and successfully excluded this evidence. 

^[3]  With this testimony, counsel sought to rebut Ballard=s allegation that appellant requested to perform sex acts on her in the back of his bread truck. 

^[4]  The investigator, who also served as a police officer, stated that she attempted to contact Officer Adams but could not reach him.  Counsel thereafter instructed her to contact another officer at the police department to help reach Officer Adams, but she declined because she felt uncomfortable contacting these officers due to the potential appearance of impropriety.  According to counsel, she failed to inform him of such discomfort and instead told him Adams would not speak with her.

^[5]  Appellant cites Thomas v. State, 669 S.W.2d 420 (Tex. App.CHouston [1st Dist.] 1984, pet. ref=d), in support of his argument that prior false accusations are admissible to impeach a witness=s credibility.  We find Thomas distinguishable because the complainant there admitted the falsity of the prior accusation.  Id. at 422B23. 

^[6]  Appellant cites Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982), and Everage v. State, 893 S.W.2d 219, 223 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d), as illustrative cases where counsel was held ineffective for failure to impeach a witness.  However, those cases involve far more extreme facts than the present case and are thus inapposite.  See Ybarra, 629 S.W.2d at 949 (trial counsel, new associate with no previous trial experience, was assigned murder case by superior night before trial and spent twelve hours of preparation time exclusively studying Code of Criminal Procedure); Everage, 893 S.W.2d at 223 (trial counsel, after his motion for recess was denied, failed to call any defense witnesses, including witnesses who would impeach critical eyewitness=s testimony that appellant was principal actor in theft by testifying that witness stated at pretrial hearing that other party was principal actor).

^[7]  In cross-examination of appellant=s wife about children living in her home, the State elicited the following testimony:

Q.        And Christine and Chris are children of [appellant=s] second marriage or first marriage?

A.         Chris is from his first marriage.

Q.        And Christine?

A.         She wasn=tChe wasn=t married to her.

Q.        How many times has your husband been married, ma=am?

A.         This is his second marriage.

^[8]  On cross-examination of appellant, the State elicited such testimony as follows:

Q.         Tell us how long you worked for Victoria Police Department.

A.         When I got out of the Air Force, I believe October of 2000 . . . .

Q.         And why did you leave there?

A.         Somebody made an allegation that I made a false report or something like that.  [State passes the witness.]

^[9]   In further explaining his failure to object to this testimony, counsel stated that, at this stage of the trial, he was attempting to persuade the jury to consider probation.  Appellant contends his actions do not comport with such strategy.  We need not address this issue because, as noted, counsel provided a sound strategy for his actions.  

^[10]  Appellant testified on redirect that he responded to a report that people were possibly using marijuana at a park, but, when he arrived at the scene, he could not find such activity, which he radioed back to the station.  After further searching, he found a deputy from his police department drinking beer at the park with a group of people and questioned the group and the deputy about marijuana usage.  The deputy reported appellant=s questioning to the station, and appellant claimed he got in trouble for the apparent inconsistency between his prior report and his subsequent questioning of the deputy. 

^[11]  Counsel described the complainant as the Avictim@ in the following exchange:

Q.         Well, why wouldn=t [appellant] tell you the same story that the victim [referring to the complainant] told if he knewCif he was guilty of this?

A.         I don=t know.  I don=t know what the victim said at all.

Q.         I know that, but I=m telling you the victim told a different story.

A.         Okay.

Q.         So that means one of them, either the victim is not telling it like it is or he=s not telling it like it is or you=re not telling it like it is.