Arnulfo Garcia Cantu v. State

Affirmed and Memorandum Opinion filed December 9, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00854-CR
ARNULFO GARCIA CANTU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 12-CR-3324
MEMORANDUM OPINION
A jury convicted Arnulfo Garcia Cantu of indecency with a child1 and
assessed his punishment at seven years’ confinement and a $10,000 fine. In a
single issue, appellant contends that he was denied the right to effective assistance
of counsel. We affirm.
1
See Tex. Penal Code Ann. § 21.11 (Vernon 2011)
BACKGROUND
Appellant lived with and dated the complainant’s grandmother in Galveston
for most of the complainant’s life. On May 13, 2012, when the complainant was
12 years old, she told her mother that appellant had touched her breasts and vagina.
Appellant was charged with indecency with a child. Trial was set for July 8,
2013. A week before trial, appellant replaced his previously retained counsel with
Justice Adjei. Adjei moved to continue the trial setting. The trial court granted
Adjei’s request, and trial was reset for August 19, 2013. Adjei again moved to
continue the trial setting three weeks later. He asserted that he needed additional
time to hire a private investigator and interview witnesses. The trial court denied
Adjei’s request.
Trial commenced on August 19, 2013. The complainant testified that
appellant touched her breasts and vagina more than 10 times, and possibly more
than 20 times. She stated that this began in 2005 when she was six years old and
her family moved next door to appellant. At the time, the complainant’s parents
would go to work and appellant would babysit the complainant and her siblings.2
The complainant stated that there were times when she was alone with appellant,
or was present with him and her younger sister. The complainant also stated that
there were times when she would spend the night at appellant’s home. She
testified that appellant touched her in different rooms in his home and that he did
so after the complainant’s grandmother went to work at 5:00 or 6:00 a.m., when it
was still dark outside.
The complainant testified that appellant continued to touch her after she
moved to Houston in 2008, when she was nine years old. She testified that, on her
2
The complainant has three siblings: a sister, who is two years older; a brother, who is
three years younger; and a sister, who is six years younger.
2
visits back to Galveston, there would be times when she was alone with appellant
or was present with appellant and her younger sister. The complainant stated that
the last time appellant touched her was during an overnight visit she and her
younger sister made in early 2012. She stated that appellant touched her after her
grandmother went to work.
The complainant testified that she told her older sister about appellant’s
touching after the last incident. The complainant was 12 years old at the time; her
sister was 14. The complainant requested that her older sister keep appellant’s
touching a secret.
The complainant’s mother testified that, on the evening of May 13, 2012,
she returned home upset because the complainant had not cleaned their Houston
home. The mother told the complainant that she would have to spend the next
weekend at appellant’s home. The complainant began to cry. She told her mother
that appellant had been touching her between her legs at his home in Galveston
since she was six years old.
The complainant’s mother testified regarding the family’s child care
arrangements. She testified that her four children were looked after and cared for
by herself, her mother, and appellant. The adults balanced their child care
obligations with their work schedules. The complainant’s mother stated that she
was aware of times when appellant took care of the children by himself. She also
testified that the complaint’s grandmother worked two different positions. She was
a café server and worked from 6:00 a.m. to 2:00 p.m. In addition, she sometimes
worked as a banquet server from 5:00 p.m. to 2:00 a.m.
The Galveston Police Department investigated the complainant’s
allegations. The police department recorded a forensic interview of the
complainant at the Galveston County Child Advocacy Center. The video was not
3
admitted into evidence at trial. According to the complainant’s trial testimony, she
stated on the video that appellant touched her when she was six years old, eight
years old, 10 years old, and 12 years old. The complainant testified in court that
appellant touched her at other times as well. The complainant stated that she gave
the ages in the video because “it was just easier to explain it like that.”
The complainant’s mother was the first person over the age of 18 to whom
the complainant made her outcry. The mother prepared a written statement for the
Galveston Police Department, in which she wrote that the complainant told her that
appellant touched her at night after the complainant’s grandmother went to work.
Adjei cross-examined the complainant and her mother on potential
inconsistencies between the complainant’s statements. He asked the complainant
about discrepancies between her testimony in court and her testimony on the child
advocacy center video. He noted that the complainant testified in court that
appellant touched her “a lot,” but testified on the video that appellant touched her
at the ages of six, eight, 10, and 12. Adjei questioned her: “[W]hich one is it?”
The complainant responded: “All of them.”
Adjei also questioned the complainant about the time of day the touching
occurred. Adjei questioned her: “[O]n your video you stated that this incident
happened at night?” The complainant responded: “I said it happened in the
morning . . . but it was dark outside.” Adjei also asked the complainant whether
she could agree with her mother’s written statement to the Galveston Police
Department, stating that the complainant told her mother that the touching
occurred at night. The complainant answered: “No.”
Adjei cross-examined the complainant’s mother regarding the time of day
the alleged incidents occurred. He asked her whether her children ever spent the
night at appellant’s home when they lived next door to appellant. The mother
4
answered: “They wouldn’t spend the night.” She stated that her mother and
appellant “live[d] upstairs.” She stated that, on school nights, her mother and
appellant would “bring the kids downstairs and put them to sleep. So, when I get
home from work, they are sleeping.” The complainant’s mother stated that she
wrote in her statement that appellant touched the complainant at night because
“that’s what she’s told me.” Adjei offered the mother’s written statement into
evidence following this exchange. The trial court admitted the statement.
Adjei did not call a child psychology expert in defense. Adjei called
appellant and the complainant’s grandmother. Appellant testified that he did not
touch the complainant. He also testified that the complainant would not spend the
night at his home when she lived next door to him and that he was never alone with
the complainant. The complainant’s grandmother testified that the complainant
would not spend the night at appellant’s home when the complainant lived next
door to appellant. The complainant’s grandmother also testified that appellant was
never alone with the complainant.
The jury convicted appellant of indecency with a child. Appellant obtained
another attorney to replace Adjei following his conviction and filed a motion for
new trial, arguing that he received ineffective assistance of counsel from Adjei.
The trial court held an evidentiary hearing on appellant’s motion. Adjei testified
that he did not hire a child psychology expert, in part, because he had not been paid
his attorney’s fees. Appellant introduced the affidavit of a licensed psychologist,
whose areas of specialty include the evaluation and treatment of victims of sexual
assault. The psychologist opined that “this case should have had the services of a
psychologist.” The trial court denied appellant’s motion for new trial. Appellant
timely appealed.
5
ANALYSIS
Appellant contends in a single issue that his conviction and punishment must
be reversed because he was denied effective assistance of counsel at trial.
Appellant asserts that Adjei’s representation was ineffective because he (1) failed
to hire a child psychology expert; (2) failed to conduct an adequate investigation;
and (3) performed deficiently at trial by failing to give an opening statement, by
introducing into evidence the mother’s written statement to the Galveston Police
Department, and by not cross-examining all witnesses.
I. Standard of Review
In reviewing claims of ineffective assistance of counsel, we apply the two
prong test announced by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). See Ex parte Jimenez, 364 S.W.3d 866, 883
(Tex. Crim. App. 2012), cert. denied, 133 S. Ct. 834 (2013). Under the Strickland
test, an appellant must show by a preponderance of the evidence that (1) counsel’s
performance was deficient because it fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s
deficiency, the result of the trial would have been different. Strickland, 466 U.S. at
687-88; Ex parte Jimenez, 364 S.W.3d at 883.
To determine whether counsel’s performance was objectively deficient
under the first Strickland prong, we look to the totality of the representation and
the particular circumstances of the case at the time of trial, ignoring the deleterious
effect of “20/20 hindsight.” Jimenez, 364 S.W.3d at 883; Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). We indulge a strong presumption that
counsel rendered adequate assistance and acted in furtherance of a sound trial
strategy. Strickland, 466 U.S. at 689; Jimenez, 364 S.W.3d at 883. To overcome
the presumption of reasonable professional assistance, an allegation of ineffective
6
assistance must be firmly rooted in the record. Salinas v. State, 163 S.W.3d 734,
740 (Tex. Crim. App. 2005). An ineffective assistance claim with a record silent
as to trial counsel’s motivations will generally fail because the presumption that
counsel’s conduct was reasonable has not been overcome. Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2001).
To establish prejudice under the second Strickland prong, the defendant
must demonstrate a reasonable probability that, but for counsel’s deficiency, the
result of the trial would have been different. Strickland, 466 U.S. at 687-88; Ex
parte Jimenez, 364 S.W.3d at 883. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694;
Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). To undermine
confidence in a guilty verdict, the defendant must prove that “there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.” Strickland, 466 U.S. at 695. “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.” Id. at 697.
When, as here, the defendant first raises the issue of ineffective assistance of
counsel in a motion for new trial, we review the trial court’s denial of the motion
for an abuse of discretion. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.
2012); Rodriguez v. State, 329 S.W.3d 74, 81 (Tex. App.—Houston [14th Dist.]
2010, no pet.). A trial court abuses its discretion when its decision is so clearly
wrong as to lie outside the zone of reasonable disagreement. Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most
favorable to the trial court’s ruling, and will reverse only if no reasonable view of
the record could support the trial court’s ruling. Id.
7
II. Failure to Hire a Child Psychology Expert
Appellant contends that Adjei rendered ineffective assistance by failing to
hire a child psychology expert to “challenge the veracity of the statements made by
[the complainant] to her mother and to the jury.” Appellant argues two related
points. First, he argues that Adjei was deficient for not calling a child psychology
expert to testify generally that “a child may lie about child abuse.” Second, he
argues that appellant was deficient for not hiring a child psychology expert to
investigate whether the complainant’s statements in her recorded forensic
interview showed signs of unreliability or inaccuracy. According to appellant,
Adjei could have used the expert’s determination to impeach the complainant if the
statements showed signs of unreliability or inaccuracy. We reject both arguments.
A. Failure to Hire an Expert to Testify
Appellant argues that “the best way” to challenge the complainant’s
statements to her mother and to the jury would have been to present the testimony
of a child psychology expert “who would [have] testif[ied] that a child may lie
about child abuse.” Appellant presented the affidavit of a “child psychology
expert” at the hearing on his motion for new trial. The affidavit states:
A huge body of research and numerous sensational trials in the last 20
years have overwhelmingly demonstrated that children can be led into
making false statements of sexual abuse through suggestive
questioning, that children do sometimes lie even about sexual abuse,
and that the vast majority of professionals let alone jurors are unable
to detect intentional deception in children.
The affidavit concludes, “If someone with my expertise had been retained as an
expert, the jury could have been educated to the . . . research-based information
that might have led to an acquittal in this matter.”
We hold that appellant’s argument fails because appellant has not
8
established deficient performance under the Strickland standard; instead, he frames
his argument in terms of the “best” trial strategy for challenging the complainant’s
credibility. Failure to follow the “best” strategy, or execute a strategy in the “best
way,” is not the Strickland ineffective assistance standard. See Strickland, U.S.
466 U.S. at 687-88; Ramirez v. State, 422 S.W.3d 898, 903 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d) (“A sound trial strategy may be imperfectly executed,
but the right to effective assistance of counsel does not entitle a defendant to
errorless or perfect counsel.”) (citing Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006)).
Strickland requires a defendant to prove that counsel’s performance was
deficient because it fell below an objective standard of reasonableness. Strickland,
466 U.S. at 687-88. Appellant has not established, by citation to authority or
otherwise, that Adjei’s performance fell below an objective standard of
reasonableness due to his failure to hire a child psychology expert to testify at trial.
Cf. Garcia v. State, No. 13-11-00016-CR, 2012 WL 1964591, at *10 (Tex. App.—
Corpus Christi May 31, 2012, pet. ref’d) (mem. op.) (not designated for
publication) (“[W]e note that there was no evidence presented from attorneys
indicating that the prevailing professional norm requires expert psychological
testimony in cases regarding sexual abuse of a child.”). Therefore, we reject
appellant’s argument that Adjei performed deficiently due to his failure to hire a
child psychology expert to testify at trial.
B. Failure to Hire an Expert to Investigate
Appellant raises a related argument that Adjei’s performance was deficient
because he failed to hire a child psychology expert to investigate whether the
complainant might have provided unreliable or inaccurate information during her
forensic interview at the child advocacy center. Appellant argues that expert
review of the interview video could have uncovered suggestive interviewing
9
techniques, which, if detected, could have been used to impeach the complainant’s
credibility at trial. Appellant argues that Adjei’s decision not to hire an expert was
unreasonable under Strickland because it was based on financial rather than
strategic considerations. See Strickland, 466 U.S. at 691 (“In any ineffectiveness
case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.”). Appellant cites Ex parte Briggs, 187 S.W.3d 458 (Tex.
Crim. App. 2005), in support of his arguments.
In Briggs, a mother relied on her attorney’s advice and pled guilty to injury
to a child after her infant son died. Id. at 460. The mother’s attorney had not
consulted a medical expert prior to advising the mother because the mother had not
paid the expert’s fees. Id. The mother petitioned for a writ of habeas corpus on
grounds that her attorney provided ineffective assistance of counsel. Id. The
Texas Court of Criminal Appeals agreed. Id. It concluded that “counsel’s
financial decision to do nothing about the obvious need to develop evidence
concerning [the son’s] medical history did not reflect reasonable professional
judgment.” Id. at 469 (emphasis in the original) (citing Wiggins v. Smith, 539 U.S.
510, 534 (2003)). The court stated that, although the mother’s attorney was not
required to pay for expert witness fees out of his own pocket, the attorney’s failure
“to take any steps to subpoena the treating doctors, withdraw from the case . . . or
request state-funded expert assistance . . . constituted deficient performance.” Id.
The court further determined that counsel’s deficient performance prejudiced the
mother. Id. at 469-70. Medical records and expert opinions offered during the writ
proceeding raised considerable doubt that the son died as a result of homicide,
rather than natural causes. Id. at 469-70. This doubt raised a “reasonable
probability” that the mother would not have pled guilty absent the attorney’s
deficient performance, and made it “highly likely” that a jury would have found
10
the mother not guilty. Id. Accordingly, the court vacated her guilty plea. Id. at
470.
Adjei testified that he did not hire an expert because he had not been paid his
attorney’s fees. Nevertheless, even assuming for argument’s sake that Adjei’s
performance was deficient, appellant has not established prejudice. The affidavit
of appellant’s expert lists general concerns about child testimony in sexual abuse
cases; it does not raise specific concerns about the complainant’s testimony.
Nowhere in the affidavit does the expert state that he has reviewed the
complainant’s forensic interview; he only speculates: “In the event that the forensic
interview was not properly performed by the interviewer, the information which is
elicited may not be reliable.” By comparison, the mother in Briggs presented
experts at the writ proceeding who had reviewed the relevant medical records,
concluded that the mother had not injured her child, and determined that the child
died of natural causes. Id. at 462-63. Additionally, the Briggs court noted that the
child’s medical records themselves raised considerable doubt that the mother had
injured her child. Id. at 470. Here, we cannot review the video of the forensic
interview because it was not introduced into evidence.
We conclude that appellant has not established a reasonable probability that
the outcome of trial would have been different but for Adjei’s failure to hire a child
psychology expert to investigate the case. See Strickland, 466 U.S. at 687-88; see
also Chalker v. State, Nos. 01-10-00204-CR & 01-10-00205-CR, 2011 WL
5428970, at *12 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, pet. ref’d) (mem.
op.) (not designated for publication) (defendant did not prove that counsel’s failure
to hire a child psychology expert amounted to ineffective assistance in an
indecency with a child case where the defendant’s expert testified only as to what
type of investigation he would have conducted). Therefore, appellant has not
11
established ineffective assistance of counsel due to Adjei’s failure to hire a child
psychology expert to investigate the case.
III. Failure to Conduct an Adequate Investigation
Next, appellant argues that Adjei provided ineffective assistance by failing
to adequately investigate the case.3 Included in our analysis is appellant’s related
claim that Adjei’s performance was deficient because he failed to hire an
investigator.
Adjei testified that before trial he (1) met with the prosecutor several times;
(2) interviewed appellant, the complainant’s grandmother, and appellant’s
character witnesses; and (3) reviewed the previous defense counsel’s file, the
court’s file, and evidence provided by the State. Adjei testified that he did not
believe anything in his case file was acquired through his independent
investigation. Appellant asserts that, despite requesting a continuance for the
express purpose of conducting further investigation, Adjei failed to retain a private
investigator; failed to conduct interviews of any of the State’s witnesses; and failed
to obtain additional records or documents that “might have” assisted appellant in
his defense.
Defense counsel “has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691. Nevertheless, a claim for ineffective assistance based on trial
counsel’s general failure to investigate the facts of the case fails absent a showing
3
Appellant asserts that Adjei failed to adequately investigate the law and facts of the
case; however, appellant does not identify Adjei’s alleged failures to investigate the law of the
case, nor does he explain how Adjei’s alleged failure to investigate the law of the case supports
an ineffective assistance claim. We reject appellant’s claim as it pertains to an asserted failure to
investigate the law of the case due to inadequate briefing. See Tex. R. App. P. 38.1(i).
Accordingly, we consider only appellant’s claim that Adjei provided ineffective assistance by
failing to conduct an adequate investigation into the facts of the case.
12
of what the investigation would have revealed that reasonably could have changed
the result of the case. Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d). “Ineffective assistance of counsel claims are not
built on retrospective speculation; they must be firmly founded in the record.”
Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (internal quotation
marks omitted).
Even if we assume for argument’s sake that Adjei’s investigation was
deficient, we conclude that appellant has not shown prejudice. Appellant has not
established that the results of additional investigation reasonably could have
changed the outcome of this case. Appellant asserts that Adjei’s investigation
“could have led to an alibi . . . . Timesheets from [appellant’s] place of
employment may have shown” that appellant was never alone in his home with the
complainant. Appellant also asserts that “a proper investigation could have . . .
uncovered discrepancies in the State’s witnesses’ testimony . . . or avenues through
which their credibility could be challenged.” Appellant’s speculation, however,
does not establish a reasonable probability, firmly founded in the record, that the
outcome of the trial would have been different had Adjei adequately investigated
the case. See id. at 834 & n.21 (defendant had not established prejudice from
allegedly ineffective assistance of counsel at the punishment phase of trial where
the record did not show that other evidence existed beyond the cursory mitigating
evidence adduced); Martin v. State, 265 S.W.3d 435, 441 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (ineffective assistance of counsel claim based on failure
to investigate a driving while intoxicated case failed absent a showing that
favorable breath-test evidence was available and not investigated).
Additionally, Appellant asserts that “a reasonably thorough investigation
would have simply made [Adjei] better prepared for trial.” Appellant’s assertion,
13
however, does not establish prejudice for failure to investigate even if true. See
Stokes, 298 S.W.3d at 432; Perez v. State, 403 S.W.3d 246, 252 (Tex. App.—
Houston [14th Dist.] 2008), aff’d, 310 S.W.3d 890 (Tex. Crim. App. 2010)
(although defense counsel inadequately prepared for trial by failing to investigate
and interview potential alibi witnesses, counsel’s deficient performance did not
prejudice defendant because the record did not show that the result of the trial
would have been different had the witnesses testified).
We conclude that appellant has not established ineffective assistance of
counsel based on Adjei’s failure to investigate the facts of the case.
IV. Deficient Trial Performance
Finally, appellant contends that Adjei’s performance at trial was deficient
because he (1) failed to give an opening statement; (2) introduced the written
statement of the complainant’s mother, which corroborated the complainant’s story
and contained appellant’s hearsay statement; and (3) failed to cross-examine the
complainant’s sister and father. Appellant argues that Adjei’s trial errors
collectively deprived him of a fair trial.
The record is silent regarding Adjei’s trial strategy for any of the allegedly
deficient trial decisions.4 We determine that appellant has not overcome the strong
presumption that each of Adjei’s actions was reasonably professional and
motivated by sound trial strategy.
A. Failure to Deliver an Opening Statement
Appellant argues that Adjei’s failure to deliver an opening statement
amounted to deficient performance. We disagree. “Whether to deliver an opening
4
Appellant only questioned Adjei about his trial strategy for admitting the mother’s
written statement. Adjei testified that he could not recall why he had offered the statement into
evidence.
14
statement is entirely optional.” Darkins v. State, 430 S.W.3d 559, 570 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d) (rejecting defendant’s ineffective
assistance claim based on counsel’s failure to make an opening statement because
counsel’s conduct was not “so outrageous that no competent attorney would have
engaged in it.”) (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)). Adjei’s failure to deliver an opening statement did not amount to deficient
performance.
B. Introduction of the Mother’s Written Statement into Evidence
Appellant argues that Adjei performed deficiently by introducing into
evidence the written statement the complainant’s mother made to the Galveston
Police Department. The mother’s statement recorded the complainant’s outcry.
The mother wrote in her statement that appellant asked the complainant not to tell
anyone that he had touched her. Appellant argues that Adjei’s introduction of the
mother’s written statement constituted deficient performance because the statement
“was more harmful to [appellant’s] defense than helpful.” Appellant asserts that
the mother’s written statement corroborated the complainant’s testimony and
introduced appellant’s otherwise inadmissible hearsay statement.
The State argues that Adjei may have introduced the mother’s written
statement to show inconsistencies between the complainant’s allegations recorded
in the mother’s written statement and the complainant’s testimony at trial. The
mother wrote in her statement that the complainant told her that appellant’s
touching occurred at night. The complainant testified at trial that appellant’s
touching occurred in the morning. Adjei argued at closing that discrepancies in the
complainant’s statements about when the touching occurred, among other
discrepancies, discredited the complainant’s credibility.
We determine that appellant has not rebutted the strong presumption that
15
Adjei introduced the mother’s statement pursuant to the sound trial strategy of
impeaching the complainant’s credibility. See Mallett, 65 S.W.3d at 63.
Therefore, Adjei’s performance was not deficient, even though it also may have
introduced otherwise inadmissible damaging evidence. See id.; see also Williams
v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (defendant failed to
overcome the presumption that trial counsel employed sound trial strategy, despite
introducing damaging evidence); Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.
App. 2007) (“It is not sufficient that appellant show, with the benefit of hindsight,
that his counsel’s actions or omissions during trial were merely of questionable
competence.”).
C. Failure to Cross-Examine the Complainant’s Sister and Father
Adjei did not cross-examine the complainant’s sister or father.5 Appellant
asserts that Adjei should have cross-examined the sister to “discredit[] this witness
or highlight[] discrepancies in the stories of other witnesses.” Appellant, however,
does not suggest how Adjei could have achieved either goal.
Appellant assert that Adjei should have challenged the father’s remarks that
the complainant was “sweet;” that her issues at school were the result of appellant;
and that appellant “damaged” the complainant. The State argues that Adjei may
have wisely refrained from cross-examining a sympathetic witness. See Ex parte
McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005) (“Cross-examination is
inherently risky, and a decision not to cross-examine a witness is often the result of
wisdom acquired by experience in the combat of trial.”).
We determine that appellant has not rebutted the strong presumption that
Adjei’s decisions not to cross-examine the complainant’s sister or father were part
5
The complainant’s father testified at the punishment phase of trial.
16
of a sound trial strategy. See Mallett, 65 S.W.3d at 63. Therefore, appellant has
not shown that Adjei’s performance was deficient.
CONCLUSION
We hold that the trial court did not abuse its discretion in denying
appellant’s motion for new trial because appellant has not established Adjei’s
ineffective assistance. See Riley, 378 S.W.3d at 457, 460 (reviewing ineffective
assistance of counsel claim initially raised in a motion for new trial for the trial
court’s abuse of discretion in denying the motion for new trial; holding that the
trial court did not abuse its discretion because defendant failed to meet his burden
under Strickland). Having overruled appellant’s sole issue, we affirm the trial
court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
17