310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
Appellate review of counsel's representation is highly deferential; we must indulge
a strong presumption that counsel's representation falls within the wide range of reasonable
professional assistance—that is, we must presume that trial counsel's decisions were reasonably
professional and motivated by sound trial strategy. Strickland, 466 U.S. at 686; Salinas v. State,
163 S.W.3d 734, 740 (Tex. Crim. App. 2005); seeNava, 415 S.W.3d at 307-08 ("courts indulge in
astrong presumption that counsel's conduct was not deficient"). To rebut that presumption, aclaim
of ineffective assistance must be"firmly founded in therecord," and"therecord must affirmatively
demonstrate" the meritorious nature ofthe claim. See Menejield v. State, 363 S.W.3d 591,592 (Tex.
Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will
the trial record by itself be sufficient to demonstrate an ineffective-assistance claim. Nava,
415 S.W.3d at 308; seeLopezv. State,343 S.W.3d 137,143 (Tex. Crim. App. 2011). If trial counsel
has not been afforded the opportunity to explain the reasons for his conduct, we will not find him
to be deficient unless the challenged conduct was "so outrageous that no competent attorney would
have engaged in it." Nava, 415 S.W.3d at 308 (quotingMenefield,363 S.W.3d at 593); Goodspeed,
187S.W.3dat392.
Appellant complains of multiple alleged actions or inactions on the part of his trial
counsel, including failing to object to the admission of evidence, failing to have particular items of
evidence with him at trial, "curing" an error by the State, failing to request a limiting instruction,
failing to request a presentence investigation or expert evaluation, and failing to advise appellant
aboutthe appellate process. Afterreviewing appellant's complaints, we conclude that the present
record fails to demonstrate that his trial counsel rendered ineffective assistance of counsel.
Appellant criticizes his attorney for failing to object to the admission of certain
evidence: the written statement of Z.R.'s mother detailing his outcry to her of the sexual abuse
(State's Exhibit#3), a notebookcontaining appellant's writings (State's Exhibit#4), two notesZ.R.
wrote to his motherwhenhe disclosed appellant's sexualabuseof him (State's Exhibits#1 and #2),
the video recording of Z.R.'s forensic interview at the children's advocacy center (State's
Exhibit #15), the video recording ofthe detective's interview ofZ.R.'s mother (State's Exhibit #16),
and testimony from Melissa Rodriguez, the program director ofthe local children's advocacy center,
who appellant contends was not qualified to testify as an expert. These failures to object do not
demonstrate deficient performance by counsel.
First, several of these failures to object do not constitute deficient performance
because the complained-ofevidence was not objectionable. For example, appellant complains about
trial counsel's failure to object on hearsay grounds to State's Exhibit #2, one of the "letters that the
alleged victim gave to his mother the day that he made the outcry of sexual abuse." However, when
a defendant is charged with certain offenses against a child under the age of 14, including aggravated
sexual assault of a child, article 38.072 of the Code of Criminal Procedure (commonly referred to
as the outcry statute) creates a hearsay exception for a child-complainant's out-of-court "statements"
that "describe the alleged offense," so long as those statements were made "to the first [adult] person
... to whom the child . .. made a statement about the offense" and the procedural requirements of
the statute are met. See Tex. Code Crim. Proc. art. 38.072, § 2(a)(l)-(3); Sanchez v. State,
354 S.W.3d 476, 484 (Tex. Crim. App. 2011). "A 'statement' is an oral or written verbal
expression." Tex. R. Evid. 801(a). Here, State's Exhibit #2 was Z.R.'s written verbal expression
describing the alleged offenses that Z.R. made to his mother, the first adult to whom Z.R. disclosed
the abuse, during his outcry of the abuse. Thus, this handwritten note was admissible under
the outcry statute's hearsay exception, and counsel was not deficient in failing to assert a
hearsay objection.
In addition, although appellant summarily asserts that Rodriguez's testimony was
objectionable because she was "not properly qualified to testify as an expert witness," he fails to
explain how herqualifications fall short. Wenote that, contrary to appellant's assertions, therecord
reflects that Rodriguez was qualified as an expert.2 See Tex. R. Evid. 702 ("[A] witness qualified
as an expert by knowledge, skill, experience, training, or education may testify thereto in the form
of an opinion or otherwise."); Jessop v. State, 368 S.W.3d 653, 689-90 (Tex. App.—Austin 2012,
no pet.) ("To be qualified to give expert opinion testimony, the witness 'must possess some
additional knowledge or expertise beyond that possessed by the average person, but the gap need not
necessarily be monumental.'" (quoting Davis v. State, 313 S.W.3d 317, 350 (Tex. Crim. App.
2010))). Thus, counsel was not deficient in failing to object to Rodriguez's testimony based on her
purported lack of qualifications.3
Second, the complained-of failures to object to particular evidence might well have
been trial strategy on the part of counsel. The record demonstrates that part of the defense strategy
was to emphasize inconsistencies between the various statements Z.R. and his mother made,
particularly discrepancies in the dates of the alleged abuse and Z.R.'s outcry, as well as Z.R.'s
inability torecall details relating to the alleged abuse. Thus, counsel could very well have permitted
2 The recorddemonstratesthat Rodriguezwas qualified as an expert based on her education,
training, and experience. She obtained a bachelor's degree in sociology, a master's degree in
counseling, and completed hundreds of continuing education hours specifically relating to child
abuse. She is a forensic interviewer with over 15 years of experience and has conducted more than
1,000 forensic interviews of children. In her capacity as the program director of the children's
advocacy center, sheworks with various agencies—including lawenforcement andchildprotective
services—involved in the multidisciplinary team that conducts child-abuse investigations and
provides services to child-abuse victims. Further, Rodriguez previously testified as a child-abuse
expert on several occasions.
3 We also note that trial counselutilizedRodriguez's expertiseon appellant's behalfduring
his cross-examination to demonstrate that certainconductby appellant was equallyconsistent with
not sexually abusing a child. Taking advantage of her expertise in this manner would be a
reasonable trial strategy and might be an explanation for not objecting to her purported lack of
qualifications.
the admission of otherwise inadmissible hearsay statements (one of Z.R.'s hand-written notes,4 the
written statement of Z.R.'s mother, the video recording of Z.R.'s forensic interview, and the video
recording of the interview of Z.R.'s mother) because he wanted them in evidence in order to
demonstrate those inconsistencies and deficiencies. For example, in attempting to impeach Z.R.'s
mother with inconsistencies in her various statements, counsel cross-examined her using her written
statement. As for counsel's failure to object to appellant's notebook (State's Exhibit #4), or the
writings contained therein, we note that the portions about which appellant now complains—song
lyrics "suggesting that the Appellant was involved in gang activity"—are at best a mere implication
that appellant was or wanted to be part of a gang. As other portions of the notebook were clearly
admissible—in particular, the lyrics of a song entitled "[Z.] Song," about a nine-year-old boy
showing"a grownman" appellant's age "the meaning of life," see Tex. Code Crim. Proc. art. 38.37,
§ 1(b) (evidence bearing on relevant matters, including state of mind of defendant, admissible in
prosecution of certain offenses committed against children)—counsel could very well have
determined that objecting, and therebydrawing attention to evidence that was merely suggestive of
possible gang affiliation, might result inoverly emphasizing thewritings contained in thenotebook.
4 The record contains two handwritten notes that Z.R. gave to his mother during his outcry.
The first expresses his fear about moving to a new house near appellant's home and having contact
with appellant; the second details the acts ofsexual abuse appellant perpetrated against him.
Counsel might also have determined that, given the state of the evidence,5 the mere implication of
gang affiliation was not detrimental to the defense.
Appellant also asserts that his counsel's performance was deficient because he "did
not have copies of key evidence with him at trial, even though all of the evidence was provided to
him through the discovery process." However, claims of deficient performance must be
affirmatively demonstrated in the record. See Villa v. State, All S.W.3d 455,463 (Tex. Crim. App.
2013) ("[C]ounsel's alleged deficiency must be affirmatively demonstrated in the trial record.").
This assertion is not. As proofofthis deficient performance, appellant relies on the fact that his trial
counsel requested a copy of State's Exhibit #3, the written statement ofZ.R.'s mother, from the trial
court during trial. However, the record also reflects that although the State provided the requisite
notice and summary of the outcry statement to counsel, see Tex. Code Crim. Proc. art. 38.072,
§ 2(b), the document itself had not been previously tendered to counsel. Thus, counsel could not
have been deficient for "failing" to have a document with him at trial that was never in his
possession. Appellant attempts to furtherdemonstratethis failure to have key evidenceby asserting
that trial counsel did not have a copy ofthe search warrant for appellant's uncle's house that counsel
at one point contemplated offering into evidence. However, the record does not actually demonstrate
that counsel did not have a copy of the search warrant with him at trial. Rather, the record simply
demonstrates that counsel wanted to offer into evidence the copy of the search warrant that the
s We note that the record otherwise demonstrates that appellant did not have any
characteristics typically associated with gang membership, nor was any affiliation with gang
members shown. Moreover, the complained-of song lyrics were in no way emphasized (or even
mentioned) during trial. Only the lyrics on the two pages of "[Z.] Song" were discussed during
questioning and referenced during argument.
testifying officer had with him in court. Counsel may simply have preferred to offer the officer's
copy of the document since he was the officer who obtained the search warrant.
Appellant next complains about his counsel's "curing" the State's error (failing to
have Z.R. identify appellant in open court) when counsel had Z.R. identify appellant during
cross-examination. This complaint presupposes there was error to cure. The prosecutor could very
well have been waiting until redirect to have Z.R. identify appellant.6 Anticipating such, trial
counsel could have been acting preemptively to avoid having the last testimony the jury heard from
Z.R., the last witness for the State, be his in-court identification of appellant as the individual who
perpetrated multiple acts of sexual abuse against him.
Appellant also contends that his trial counsel was deficient in failing to request a
limiting instruction regarding "the abundance of testimony admitted regarding the alleged child
pornography that was in Appellant's possession." While it is true that a limiting instruction
concerning the limited admissibility of extraneous-conduct evidence must be requested at the time
ofthe admission ofthe evidence, seeDelgado v.State,235 S.W.3d 244,253 (Tex. Crim. App. 2007)
("[A] defendant is entitled to limiting instructions on the use of extraneous offenses during the guilt
phase only if he timely requests those instructions when the evidence is first introduced."); see also
Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) ("A failure to request a limiting
instruction at the time evidence is presented renders the evidence admissible for all purposes and
6 As the State notes in its brief, this is not an uncommon trial tactic of prosecutors in these
types of cases because it "dramatizes the moment and leaves a lasting impression on thejury."
relieves the trial judge of any obligation to include a limiting instruction in the jury charge."),
counsel could very well have not requested such an instruction for several reasons.
First, contrary to appellant's reference to the "abundance of testimony" about child
pornography, the actual evidence at trial did not include any evidence that appellant had child
pornography in his possession. See Tex. Penal Code §§ 43.25(a)(1) (setting forth offense of
possession of child pornography as possession of "visual material that visually depicts a child
younger than 18 years of age at the time the image of the child was made who is engaging in sexual
conduct"), .25(a)(2) (defining sexual conduct as "sexual contact, actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or
lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the
areola"). According to Z.R.'s testimony, appellant showed Z.R. "not very many" pictures of little
boys on his laptop. The pictures made Z.R. "feel uncomfortable" because the boys were in their
underwear"posing," although Z.R. could not explain what he meant by posing. Z.R. testifiedthat
he could not see any private parts in the pictures. Similarly,in the video recording of Z.R.'s forensic
interview at the children's advocacy center, Z.R. says that appellant showed him pictures on the
computerof kids, mostlyboys, "butt naked" in "poses." Beyond this general description, he does
not provide any details of the photographs. This evidence not constitute evidence of child
pornography. At best, this evidence demonstrates that appellant showed Z.R. some arguably
sexually suggestive photographs. Trial counselcould very well have decidednot to draw attention
to this evidence, andperhaps thereby highlight the suspicious nature of it, by requesting a limiting
instruction. Moreover, counsel maintained thatthere wasno evidence demonstrating thatappellant
possessed any child pornography. Thus, counsel could have felt that requesting a limiting instruction
on the complained-of evidence would appear to concede the existence of child pornography and
appellant's possession of such, or at least undermine or weaken the defense position that there was
no evidence of child pornography.
Further, counsel may not have objected to this evidence because he deemed such
evidence to be unobjectionable in that it was admissible as evidence ofextraneous misconduct under
Rule 404(b). See Tex. R. Evid. 404(b) (excluding evidence ofextraneous bad acts used to prove bad
character but allowing admission ofsuch evidence for some other purpose, "such as proofofmotive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
There was testimony at trial about the behaviors that sex offenders engage in, including
showing a victim child pornography, that are part of the "grooming" process. See Morris v. State,
361 S.W.3d 649, 667-69 (Tex. Crim. App. 2011) (phenomenon of grooming of children for sexual
molestation is legitimate subject of expert testimony). Thus, evidence of appellant showing Z.R.
sexually suggestive photographs could constitute evidence of the grooming process appellant
engaged in with Z.R. As such, the evidence was admissible underRule404(b) to showappellant's
preparation. SeeSandoval v. State, 409 S.W.3d259, 300 (Tex. App.—Austin 2013, no pet.) ("The
'preparation' or 'plan' exception allows admission of evidence toshow steps taken bythedefendant
in preparation for the charged offense." (citing Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim.
App. 2005))).
In this case, appellant elected to have the trial court assess his punishment after
submitting the issue of guilt to ajury. Appellant next maintains that his trial counsel was deficient
10
in not requesting that a presentence investigation (PSI) be conducted or that an expert evaluate
appellant prior to the punishment hearing. First, as appellant concedes in his brief, appellant was
not entitled to have a PSI conducted in the instant case because the jury convicted him of multiple
counts of aggravated sexual assault of a child, and thus he was not eligible for community
supervision. See Tex. Code Crim. Proc. art. 42.12, §§ 3g(a)(l)(E) (limitations on judge-ordered
community supervision prohibit judge from granting community supervision ifdefendant adjudged
guilty ofaggravated sexual assault), 9(g)(3) (mandated PSI not required if only available punishment
is imprisonment). Second, although appellant asserts that a PSI "would have been extremely
beneficial" because the trial court would have "a thorough investigation ... regarding [appellant's]
background, education, lack of criminal history, and any other mitigating evidence," this is pure
speculation. It is equallypossible that such information, or other information gathered during the
PSI, would have been detrimental to appellant. Concerning the expert evaluation, appellant does not
identify whattype of expert should haveevaluated appellant (presumably hemeans an expert in sex-
offendertreatment)but simplyassertsthat it wouldhavebeen "strategic" to have appellantevaluated
regarding his likelihood to reoffend. Again, this assertion assumes that such an evaluation would
demonstrate that appellant was a low risk for recidivism as opposed to a high risk. Moreover, we
also note that trial counsel in this case was retained. Therefore, a request for a court-appointed
expert to evaluate appellant would not appear in therecord. Retained trial counsel could very well
have consulted an expert or even had appellant evaluated. This is yet another claim of deficient
performance not affirmatively demonstrated in the record. See Villa, 417 S.W.3d at 463.
11
Finally, appellant asserts that trial counsel was deficient because he "did not
effectively advise [appellant] on his rights regarding the appellate process." As proof of this
deficiency, appellant notes that appellant filed a pro se notice of appeal and that the record does not
reflect that retained counsel withdrew as counsel of record. However, it is not uncommon for trial
counsel to have the defendant sign the notice of appeal when counsel knows he will not be
representing the defendant on appeal to avoid becoming counsel of record on appeal. See Tex. R.
App. P. 6.1(a) ("Unless another attorney is designated, lead counsel for an appellant is the attorney
whose signature first appears on the notice of appeal."). Moreover, the pro se notice of appeal filed
in this case was a typed document, not a hand-written letter, that contains language typically found
in notices of appeal drafted by attorneys, including a certificate of service. This suggests that trial
counsel prepared the notice of appeal for appellant to sign, which would indicate that counsel did
discuss the appealwith appellant. Further,the fact that trial counsel did not formallywithdraw from
the case is not demonstrative of anything, as counsel was retained. While perhaps preferable for
counsel to do so, the obligation to withdraw as counsel of record stems from the statute governing
the appointment of counsel for indigent defendants. See Tex. Code Crim. Proc. art. 26.04(j).
Regardless, what counsel advisedappellantabouthis right to appeal and the appealprocess—orthat
counsel failed to advise him of such—is not reflected in the record before us. Thus, once again,
appellant's claim ofdeficient performance isnotaffirmatively demonstrated intherecord. See Villa,
417S.W.3dat463.
As additional proofof deficient performance, appellant cites several comments the
prosecutor made during the course oftrial about the conduct orstrategy ofappellant's trial counsel.
12
However, contrary to appellant's contention, such comments do not "clearly exemplify]
[appellant's] trial counsel's] complete lack of strategic or tactical decision-making." Rather, such
comments demonstrate, at most, that the prosecutor disagreed with her opponent's trial tactics. The
mere fact that another attorney might have pursued a different course of action at trial does not
suffice to prove a claim of ineffective assistance of counsel. Tretterv. State, No. 03-12-00034-CR,
2014 WL 3893016, at *6 (Tex. App.—Austin Aug. 7, 2014, pet. ref d, untimely filed) (mem. op.,
not designated for publication); Harris v. State,
125 S.W.3d 45, 54 (Tex. App.—Austin 2003, pet.
ref d, untimely filed); see Ex parte Jimenez,
364 S.W.3d 866, 883 (Tex. Crim. App. 2012), cert,
denied, — U.S. —-,
133 S. Ct. 834 (2013).
In this case, appellant did not file a motion for new trial. Thus, the record is silent
as to whether there was a strategic reason for counsel's alleged conduct about which appellant
complains. Appellant's assertionssuch as "there [was] no absolutelyno plausible trial strategy"and
"there [was] no reasonable trial strategy" for the alleged deficiencies are mere speculation. Such
speculation does not constitute a demonstration, founded in the record, that no reasonable trial
strategy existed. See Lopez, 343 S.W.3d at 142 ("[Counsel's deficiency must be affirmatively
demonstrated in the trial record; the court must not engage in retrospective speculation."); see also
ra/a,417S.W.3dat463.
Appellant's trial counselwas not afforded an opportunity to explain his reasons for
the complained-ofconduct. Absentrecord evidence regarding counsel's strategyor reasoning, we
will presume heexercised reasonable professional judgment. SeeHillv. State, 303 S.W.3d863, 879
(Tex. App.—Fort Worth 2009, pet. ref d); Poole v. State, 91A S.W.2d 892,902 (Tex. App.—Austin
13
1998, pet. ref d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the strong
presumption ofreasonable assistance because without explanation for trial counsel's decisions, the
complained-ofconduct does not compel a conclusion that trial counsel's performance was deficient.
We cannot say that "no reasonable trial strategy could justify" counsel's decision to engage in the
complained-ofconduct. SeeLopez, 343 S.W.3dat 143. Nor can we conclude that counsel's conduct
was "so outrageous that no competent attorney would have engaged in it." See Menefield,
363 S.W.3d at 592. Accordingly, we hold that appellant has failed to demonstrate deficient
performance on the part of his trial counsel. See Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim.
App. 2013) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the
product of an informed strategic or tactical decision, a reviewing court should presume that trial
counsel's performance was constitutionally adequate 'unless the challenged conduct was so
outrageous that no competent attorney would have engaged in it.'").
Because appellant failed to meet his burden on the first prong of Strickland, we need
not considerthe requirements of the secondprong—prejudice. SeeLopez, 343 S.W.3d at 144;see
also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to
satisfy one prong of the Strickland test negates a court's need to consider the other prong.").
Nevertheless, we would also conclude that appellant failed to demonstrate that he suffered prejudice.
Even if an appellant shows that particular errors of counsel were unreasonable, he
must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at
693-95; Cochran v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no pet.). It is not sufficient
that anappellant show, with the benefit of hindsight, that his counsel's actions oromissions during
14
trial were ofquestionable competence. Lopez, 343 S.W.3dat \A2-A3. Further, merely showing that
the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at
693; ExparteMartinez,
330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The appellant must prove
that counsel's errors, judged by the totality of the representation, not by isolated instances of error
or by a portion of the trial, denied him a fair trial. Strickland, 466 U.S. at 695.
In his argument regarding prejudice, appellant summarily asserts that "[h]ad
[appellant's] trial counsel made proper objections, there is a reasonable probability that the jury
would not have found [him] guilty" because, according to appellant, this case relied solely on the
credibility ofZ.R. andhismother since there was noevidence corroborating theallegations, and the
admission of the evidence to which counsel did not object improperly bolstered their credibility.
Appellant further asserts that "[t]here is also a reasonable probability that if [appellant's] trial
counsel had presented any beneficial evidence during punishment for the trial court toconsider that
[appellant's] sentence could have been less severe." These assertions are speculative claims without
support in the record.
Appellant maintains that "the present case presents incompelling terms 'a breakdown
in the adversarial process that our system counts ontoproduce justresults.'" We disagree. During
voir dire, trial counsel questioned the jury panel regarding their ability to serve on the jury: he
discussed important legal concepts such as appellant's Fifth Amendment right not to testify; he
explored possible bias or preconceptions relating to homosexuality and sexual orientation; he
discussed issues factually relevant to the case such as child development and differing perceptions
ofchildren as well as misconceptions concerning child molestation; he asked the jurors their views
15
regarding homosexuality and child molestation; he discussed witness credibility and how to assess
it; and he successfully challenged severalpanel members for cause. Further, the record showsthat
counsel presented anddeveloped a defense strategy of asserting a false accusation as evidenced by
inconsistentstatements, Z.R.'s inability to recall details, and the lack of corroboratingevidence. In
support ofthis defense, trial counsel emphasized, through cross-examination ofthe State'switnesses
and injury argument, thediscrepancies in the various statements given by Z.R. andhis mother and
the deficiencies in the police investigation. During his closing argument, trial counsel discussed
Z.R.'s inability to recall specific details associated with the abuse and Z.R.'s behaviors that were
inconsistent with having been sexually abused. Counsel also provided alternative explanations for
evidence possibly corroborating Z.R.'s allegation of abuse (such as appellant's writings) and
reminded the jury that even though there was mention ofchild pornography there was no evidence
of appellant's possession of such.
An accused is not entitled to entirely errorless representation, and we look to the
totality of the representation in gauging the adequacy of counsel's performance. Frangias,
392 S.W.3d at 653. The record in this case reveals that counsel's trial strategy was to focus on the
inconsistencies ofthe statements given byZ.R. and his mother, the lack ofcorroborating evidence,
the inadequate police investigation, and a possible motive for Z.R. and his mother to fabricate the
allegations. The fact that this strategy ultimately proved unsuccessful does not render counsel's
assistance ineffective. On the record before us, appellant has failed to demonstrate deficient
performance on the part ofhis trial counsel or that he suffered prejudice because ofthe alleged errors
16
of counsel. Thus, he has not shown himself entitled to reversal based on ineffective assistance of
counsel. We overrule appellant's sole point of error.
CONCLUSION
Having overruled appellant'ssolepointof error, weaffirm thetrialcourt'sjudgments
of conviction.
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Field
Affirmed
Filed: November 14, 2014
Do Not Publish
17