Phillip Recio v. the State of Texas

Affirmed and Memorandum Opinion filed May 9, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00231-CR
PHILLIP RECIO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1679574
MEMORANDUM OPINION
A jury found Appellant Phillip Recio guilty of continuous sexual abuse of a
child and the trial court assessed punishment at 25 years’ confinement. Appellant
raises a single issue on appeal and asserts that he received ineffective assistance of
counsel at trial. For the reasons below, we affirm.
BACKGROUND
Appellant married Complainant’s Mother in July 2014. After the marriage,
Appellant and Mother moved in together, along with nine-year-old Complainant
and her two brothers.
In September 2018, Complainant made an outcry of sexual abuse to her
Father and Stepmother. Appellant was arrested and charged with continuous
sexual abuse of a child. See Tex. Penal Code Ann. § 21.02. Appellant proceeded
to a jury trial in February 2022.
I. Evidence at Trial
The jury heard testimony from ten witnesses at trial; six presented by the
State and four presented by Appellant. Relevant portions of their testimonies are
summarized below.
Stepmother
Stepmother testified that she was concerned about certain text messages sent
from Appellant to Complainant in the summer of 2016, when Complainant and her
brothers were staying with Father. Photographs of these text messages were
admitted into evidence.
Stepmother characterized the text messages as “flirtatious.” In the
messages, Appellant repeatedly asked Complainant to send him pictures of her;
told Complainant he “miss[ed]” her and “wish[ed] [she] were here snuggling” with
him; told Complainant they could “cuddle and watch a movie” when she got home;
and told Complainant that he loved and missed her. Stepmother thought the
messages were “unusual” and showed them to Father, Paternal Grandmother, and
Maternal Grandmother. Stepmother said Maternal Grandmother was dismissive of
the messages and believed that Appellant was “just . . . trying to be a loving dad.”
Stepmother said she and Father did not report the text messages to
authorities but chose instead to monitor Complainant. Stepmother recalled that the
2
text messages eventually “kind of died down.” Stepmother agreed that, for
approximately two years after the text messages, she “did not see anything that
alarmed” her. According to Stepmother, the only “suspicious” thing she noted was
that Complainant was “pulling away and not being as outgoing as she was.”
In September 2018, Complainant and her brothers were staying with Father
and Stepmother for the weekend. Stepmother recalled that the children were
“complaining” and did not want to return to Mother’s house. Stepmother said the
children inquired as to how they could have custody changed from Mother to
Father.
According to Stepmother, Father proceeded to question Complainant about
the text messages she had received from Appellant two years earlier. Stepmother
recalled asking Complainant if Appellant had “touched [her] in any inappropriate
way,” to which Complainant responded by crying and “curl[ing] up into a ball.”
Stepmother said Mother and Maternal Grandmother were informed of
Complainant’s outcry.
Father
Father also recalled seeing the “unusual” text messages sent from Appellant
to Complainant in the summer of 2016. After discussing the messages with
Stepmother, Paternal Grandmother, and Maternal Grandmother, Father said the
decision was made “to not go forward with anything, that it really wasn’t bad
enough, that it [sic] just, red flag, something’s going on here. It’s just something to
keep an eye on.”
According to Father, Complainant and her brothers were visiting him and
Stepmother for a weekend in September 2018. Father recalled that the children
were “frustrated” and “not happy with homelife [with Mother] in Houston at that
3
point.” Father said Complainant “was more withdrawn than usual.”
When the children were preparing to return to Houston, Father said
Complainant “started acting fidgety and nervous.” Father asked Complainant
about the text messages she had received from Appellant two years earlier and
Complainant “started crying and she said that she couldn’t speak of it because he
said he would hurt people.” Father said Complainant told them she had been
sexually abused by Appellant.
Claudia Hauser
Hauser is a forensic interviewer employed at the Children’s Assessment
Center. Hauser interviewed Complainant in October 2018 regarding the sexual
abuse allegations. Hauser said Complainant was “very reluctant” to talk, was
“very quiet,” and “wasn’t answering any of [her] questions.” Eventually,
Complainant began to share the details of the abuse. Hauser opined that
Complainant’s behavior was consistent with a child that had been sexually abused.
Susan Camazine
Camazine is the sexual assault nurse who examined Complainant in October
2018. According to Camazine, Complainant was “withdrawn, very quiet, she was
trembling throughout our time together, she was tense, fidgeting, very anxious, she
was constantly looking down to the floor, wringing her hands, [and] tapping her
feet.”
Camazine said she was unable to complete Complainant’s genital
examination because Complainant “was not in an emotional place to allow me to
do that exam.” Camazine testified that, in her experience, patients “very seldom”
refused that portion of the exam.
4
Complainant
Complainant said she first met Appellant when she was nine years old.
According to Complainant, the first “inappropriate” interaction with Appellant
occurred when she was laying on the couch next to him watching a movie and he
touched her waist and thighs.
Complainant said other incidents with Appellant occurred in his bedroom.
On one occasion, Complainant recalled that Appellant had her take off her pants so
he could rub Neosporin into chigger bites on her “groin area.” Complainant
recalled other incidents where Appellant would touch her “breast, [] butt, [] thighs,
[and] waist.” In exchange for this contact, Complainant said Appellant would
“treat [her] better” than her brothers and “offer [her] things, like candy or, at one
point, cats.” Complainant said these interactions would regularly occur throughout
the time she lived with Appellant.
Complainant testified that Appellant made her watch the movie “The
Secretary,” which portrayed a “completely obedient” woman. Complainant said
Appellant told her she “should be more like the woman portrayed in the movie.”
Complainant also discussed the September 2018 weekend spent with Father
and Stepmother, at which she made the sexual abuse outcry. On the drive from
Houston to her Father’s house, Complainant recalled that she was “upset” because
Mother and Appellant “took [her] phone.” Complainant said her brothers had their
phones taken away, too.
On the Sunday she was supposed to return to Houston, Complainant said her
Father and Stepmother asked her if Appellant had sexually abused her. In
response, Complainant said she “didn’t say anything to them” and only “nodded.”
Mother came to the house the next day and Complainant told her she had been
5
inappropriately touched by Appellant.
Dr. Crowson
Dr. Crowson is a clinical psychologist and watched Complainant’s October
2018 forensic interview from an adjacent room. Dr. Crowson noted that
Complainant exhibited certain behaviors, including “avoidance, withdrawal, [and]
trying to detach from the situation.” Reviewing the text messages admitted into
evidence, Dr. Crowson opined that they suggested “grooming in the sense that
there was encouragement of secrecy, [and] forced affection and threats if she
wasn’t responding in a quick enough manner.”
Connie Recio
Connie Recio is Appellant’s mother. Connie said she lived with Appellant,
Mother, Complainant, and Complainant’s two brothers for one-and-a-half years
starting in February 2017. During this time, Connie said Appellant was employed
as a railroad car technician and would work either the second shift (3:00 p.m. to
11:00 p.m.) or the third shift (11:00 p.m. to 7:00 a.m.). Connie said she was
generally at the house “[a]ll the time” since she had recently retired.
Connie said her bedroom was on the house’s second floor and shared a Jack-
and-Jill bathroom with Complainant’s bedroom. Connie recalled that the
bathroom’s doors were generally kept open so she could monitor whether
Complainant was using her tablet “after it was bedtime.”
During her time living with the family, Connie said she did not see
Complainant exhibit any behavior suggesting Complainant “was either unhappy or
[] felt threatened or that she was scared in any way.” From what she observed,
Connie said it appeared Appellant “was a good father to the kids that were in that
house.” Connie said she did not see anything to substantiate Complainant’s sexual
6
assault allegations.
Maternal Grandmother
Maternal Grandmother recalled visiting Appellant, Mother, and the three
children at their Houston home. When asked if she had observed unusual behavior
while visiting the family, Maternal Grandmother said she “never saw
[Complainant] uneasy, you know. I never did see her act like anything was, you
know, going on or inappropriate.” According to Maternal Grandmother, she
thought Appellant had a “good relationship” with Complainant and that he was
“always supportive of all three kids.”
Mother
At the time of trial, Mother said she had not seen Complainant in over three
years because of a court order. Mother said she married Appellant in 2014 and,
afterwards, the family moved in together. Mother said her children “loved”
Appellant and “were crazy about him.” Mother said Father never notified her of
the 2016 text messages sent from Appellant to Complainant.
Mother also was questioned regarding the September 2018 weekend when
Complainant made the sexual abuse outcry while visiting Father and Stepmother.
At that time, Mother said all three children “had lost their phones . . . because their
grades had started slipping.” Mother also recalled that Complainant “had a big
English project that was due that Monday” but had “been putting it off.” Mother
said that, because Complainant had not completed her English project, she “was
threatened to lose her little Pet Shops and her Animal Jam account which was
everything to her at that point.” Describing Complainant as “very angry,” Mother
said she did not know if she had ever seen Complainant as “angry as she was at
that moment.”
7
Mother said she was on her way to pick up the children from Father’s house
when Father called her regarding the outcry; Mother said she was “in shock” and
“couldn’t even concentrate on driving.” Mother immediately returned to Houston,
removed her stuff from the house she shared with Appellant, and went to Maternal
Grandmother’s house. Mother said she went to Father’s house the next day to talk
to Complainant.
When she arrived at Father’s house, Mother said Paternal Grandmother
initially kept her “from talking by [her]self” to Complainant. According to
Mother, Paternal Grandmother said she “want[ed] to make sure that [Complainant]
tells you the same thing that she told to us.” When asked if “anything unusual”
happened at Father’s home that made her “concerned” about Complainant’s outcry,
Mother said “yes” and recalled hearing Complainant and her half-sister “laughing
in the bedroom” before Complainant came outside. Mother said the girls “were
giggling like little schoolgirls.”
A few days later, Mother said Complainant had a forensic interview at the
Children’s Advocacy Center. Complainant’s siblings also attended the interview.
Mother said she thought their “demeanor” was inappropriate “the entire time” and
stated:
Well, I mean, I — I’m sitting there worried about my children by
myself, crying my eyes out, wondering what’s going on with them as
our life was crumbling and they were sitting over there on their cell
phones, looking and scrolling through Facebook and laughing and
talking about where they were going to go eat when they left.
At this time, Mother said Father was paying her $1,200/month in child support and
stopped sending payments approximately two weeks after Complainant’s outcry.
Mother said she was currently paying Father $1,050/month in child support.
Mother said she never saw any behavior between Appellant and
8
Complainant that caused her concern about any inappropriate conduct. Mother
said she did not believe Complainant’s allegations.
Appellant
When asked about the 2016 text messages he sent Complainant, Appellant
recalled that he and Mother had been having trouble with one of Complainant’s
brothers. Appellant said Complainant’s brother was not allowed to use her phone
and, when Appellant asked Complainant to send pictures, he was confirming that
Complainant was the person using the phone.
Appellant said he never touched Complainant inappropriately.
After the close of evidence, the jury deliberated and found Appellant guilty
of continuous sexual abuse of a child. The trial court assessed punishment at 25
years’ confinement.
II. Post-Judgment Proceedings
Appellant filed a motion for new trial and asserted that he received
ineffective assistance of counsel at trial. The State filed a motion to recuse the trial
judge, pointing to certain comments the judge made that indicated he “believe[d]
this particular defendant to have been wrongly convicted.” The motion to recuse
was granted.
A hearing was held on Appellant’s new trial motion. Appellant’s trial
counsel testified at the hearing and said he had approximately 300 pending cases at
the time of Appellant’s trial. Counsel said he was the only one working on
Appellant’s case.
Counsel acknowledged that he made an “honest mistake” by not viewing the
video of Complainant’s forensic interview before trial. Counsel noted that
Complainant’s statements regarding the assault “evolved” from her forensic
9
interview to trial and stated that “[t]here were certainly additions” to her statement.
Counsel also said that he would have been able to observe certain behaviors
Complainant exhibited during the forensic interview. Mother, testifying at the
hearing, said these behaviors suggested Complainant was lying.
Counsel also testified that he did not hire an investigator and did not call
Micah Singleton, one of Appellant’s friends, to testify as to Appellant’s character.
Singleton testified at the hearing and stated that (1) he briefly lived with Appellant
and his family, (2) he never noticed any inappropriate behavior between Appellant
and Complainant, and (3) in his twenty-year friendship with Appellant, he never
noticed that Appellant was attracted to young girls.
The trial court signed an order denying Appellant’s new trial motion. The
trial court also signed findings of fact and conclusions of law.
ANALYSIS
Arguing that he received ineffective assistance of counsel, Appellant points
to the following alleged deficiencies in his trial counsel’s representation:
1. failure to review Complainant’s forensic interview before trial;
2. failure to call Singleton as a witness at trial;
3. failure to timely designate Mother as an outcry witness; and
4. failure to preserve error on an improper jury argument.
Because of these deficiencies, Appellant contends, the trial court erred when it
denied his motion for new trial.
I. Standard of Review and Governing Law
When, as here, a defendant asserts ineffective assistance of counsel in a new
trial motion, we review the denial of that motion for an abuse of discretion. Riley
v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on other grounds
10
by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018); Straight v. State, 515
S.W.3d 553, 564 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). 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, 122 (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.To prevail on a claim of ineffective assistance of counsel, a defendant must
show by a preponderance of the evidence that: (1) trial 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 v. Washington, 466 U.S. 668, 688,
692 (1984); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
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. “Because there are
‘countless ways’ to render effective assistance, judicial scrutiny of the trial
counsel’s conduct must be highly deferential.” Ex parte Rogers, 369 S.W.3d 858,
862 (Tex. Crim. App. 2012). 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
assistance must be firmly rooted in the record. Salinas v. State, 163 S.W.3d 734,
740 (Tex. Crim. App. 2005).
To establish prejudice under the second Strickland prong, a defendant must
11
demonstrate a reasonable probability that, but for trial counsel’s deficiency, the
result of trial would have been different. Strickland, 466 U.S. at 687-88. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). To
undermine confidence in a guilty verdict, a 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.
II. Application
We examine individually the alleged deficiencies in trial counsel’s
representation.
A. Failure to Review Complainant’s Forensic Interview
Several days after her outcry, Complainant underwent a forensic interview at
the Child Advocacy Center. Trial counsel did not review the videotape footage of
this interview before Appellant’s trial.1 At the hearing on Appellant’s new trial
motion, trial counsel agreed that this constituted an “inadvertent mistake.” Trial
counsel testified that Complainant’s testimony “evolved” between the forensic
interview and trial and noted that her testimony had “additions that were not made
when she initially gave her [forensic] interview.” Trial counsel also stated that
Complainant’s demeanor during the interview was notable and testified that, if he
had seen the video, he would have been able to introduce testimony from Mother
suggesting that Complainant’s behavior indicated she was lying.
In its findings of fact and conclusions of law, the trial court made the
following findings:
47. Defense counsel Monks made an inadvertent mistake and failed
1
Videotape footage of the interview was not admitted into evidence at trial.
12
to review the complainant’s forensic interview[.]
48. The offense report contains a detailed summary of
[Complainant’s] forensic interview with the Children’s
Assessment Center.
49. The State’s outcry notice contains a detailed summary of
[Complainant’s] forensic interview with the Children’s
assessment center.
50. The summary of [Complainant’s] forensic interview contained
in the offense report is consistent with the video of her forensic
interview and trial testimony.
51. The summary of [Complainant’s] forensic interview contained
in the State’s outcry notice is consistent with the video of her
forensic interview and her trial testimony.
52. Defense counsel Monks reviewed the summary of
[Complainant’s] forensic interview contained in the offense
report.
53. Defense counsel Monks reviewed the summary of
[Complainant’s] forensic interview contained in the State’s
outcry notice.
54. The trial court finds the State’s outcry notice and summary of it
in the offense report was almost a verbatim account of the
interview, however, only by viewing the CAC interview would
counsel have had sufficient knowledge of the complainant’s
demeanor during the interview.
The trial court also made the following legal conclusion:
Defense counsel’s performance was deficient by failing to watch
[Complainant’s] CAC interview. However, based on the totality of
the representation, Defendant has failed to demonstrate that a
reasonable probability exists that the result of the proceeding would
have been different absent counsel’s failure to watch the CAC
interview.
We agree with the trial court’s conclusion regarding prejudice: the record does not
show a reasonable probability that, but for trial counsel’s failure to review the
forensic interview, the result of trial would have been different. See id.; Cox, 389
13
S.W.3d at 819.
Appellant asserts that reviewing the forensic interview would have permitted
trial counsel to question Complainant on the following points: (1) her statement in
the forensic interview “to the effect that she now knew that [Appellant] wanted
naked pictures of her,” which was “indicative that someone had educated or
suggested that idea” to Complainant; (2) “inconsistencies” between Complainant’s
forensic interview and her trial testimony; and (3) “details” that Complainant
mentioned at trial but failed to discuss during her forensic interview. But eliciting
testimony on these points likely would not have changed the jury’s verdict. See
Strickland, 466 U.S. at 695.
First, Complainant testified at trial regarding Appellant’s alleged request for
naked pictures:
COUNSEL: What kind of things would [Appellant] ask
for?
COMPLAINANT: Pictures of myself.
COUNSEL: Would you send him pictures?
COMPLAINANT: Yes, sir.
* * *
COUNSEL: . . . . What would you call — what would
you refer to those pictures as? So if you’re
to tell your friends to send you a picture like
that, what would you call that? What do
people your age call those things?
COMPLAINANT: He would ask — he would just ask me to
send him pictures of myself and sometimes
they would be normal photos, sometimes
they would be inappropriate photos.
14
COUNSEL: What would be inappropriate about them?
COMPLAINANT: Well, first I would send him normal photos
of myself and sometimes he would tell me
that he knew what — like he would say that,
“You know what I mean,” and he would be
upset with me until I sent him photos
without my clothes on.
This line of questioning counsels against the argument that Complainant’s “naked
pictures” allegation arose solely from another person’s suggestion or coaching.
Therefore, even if trial counsel had raised this argument at trial, it likely would not
have changed the jury’s verdict. See id.Appellant also asserts that watching Complainant’s forensic interview would
have permitted trial counsel to question Complainant regarding “inconsistencies”
and additional “details” in her trial testimony. Specifically, Appellant points out
that Complainant did not mention the following in her forensic interview:
(1) Appellant made her watch the movie “The Secretary”; (2) Appellant touched
Complainant “while they were sitting on a couch together”; (3) Appellant “rubbed
Neosporin into the Complainant’s groin area to treat chigger bites”; and
(4) Appellant pulled Complainant’s hair to force her to look back at him.
But viewing Complainant’s forensic interview and trial testimony more
generally, the substance of her statements is consistent. Compared to the broader
nature of Complainant’s substantive allegations, questioning Complainant
regarding these tangential details likely would not have changed the jury’s guilty
verdict.
Appellant also contends that viewing the forensic interview would have
permitted trial counsel to introduce testimony from Mother suggesting that
Complainant’s behavior during the interview indicated she was lying. However,
this evidence likely would not have changed the jury’s verdict. See id. The jury
15
heard similar evidence from Mother, who testified that Complainant’s behavior at
certain points made her doubt the veracity of Complainant’s allegations.
Specifically, Mother testified that (1) she overhead Complainant “giggling” with
her half-sister before she came outside of Father’s house and told Mother about the
alleged sexual abuse; and (2) Complainant’s behavior before her forensic interview
was “inappropriate” in light of the situation. Accordingly, additional evidence on
this point would not have altered the trial’s result. See Ruiz v. State, No. 14-15-
00285-CR, 2016 WL 4254296, at *4 (Tex. App.—Houston [14th Dist.] Aug. 11,
2016, no pet.) (mem. op., not designated for publication) (“Evidence that is merely
cumulative will rarely be judged by trial or appellate courts to bring about a
different result.”).
Considering all the evidence in the light most favorable to the trial court’s
ruling, we conclude Appellant did not demonstrate a reasonable probability that,
but for trial counsel’s failure to watch Complainant’s forensic interview, the result
of trial would have been different. Strickland, 466 U.S. at 687-88. We overrule
Appellant’s ineffective-assistance argument on this point.
B. Failure to Present Testimony from a Beneficial Witness
Appellant asserts trial counsel erred by failing to present testimony from
Singleton, who knew Appellant for over twenty years and briefly stayed with the
family when the alleged sexual abuse occurred. At the hearing on Appellant’s new
trial motion, Singleton stated that he would have presented the following testimony
at trial:
• he knew Appellant for approximately twenty years;
• he never noticed that Appellant had “any sort of inappropriate
attraction to young girls”;
• he lived with Appellant’s family for three months in 2017; and
16
• he never saw anything inappropriate between Appellant and
Complainant.
But because the jury heard similar testimony from other witnesses, eliciting this
evidence from Singleton likely would not have changed the jury’s verdict. See
Ruiz, 2016 WL 4254296, at *4. Specifically, the jury heard the following:
• Connie, Appellant’s mother, lived with the family for a year-
and-a-half and shared a bathroom with Complainant. Connie
testified that she never saw anything to substantiate the sexual
assault allegations.
• Maternal Grandmother visited the family and never saw
anything inappropriate between Appellant and Complainant.
Maternal Grandmother thought Appellant had a “good
relationship” with his stepchildren.
• Mother testified that she never saw any behavior that gave her
“any kind of concern at all about any inappropriate conduct.”
Mother stated that she did “not believe [Complainant’s]
allegations.”
Therefore, the evidence regarding Singleton’s testimony does not satisfy
Stickland’s prejudice showing. See id. We overrule Appellant’s ineffective-
assistance argument based on Singleton’s testimony.
C. Failure to Timely Designate an Outcry Witness
The State filed a “Notice of Intention to Use Child Abuse Victim’s Hearsay
Statement,” seeking to offer into evidence the statements made by Complainant to
Claudia Aguilar, who conducted the forensic interview at the Children’s Advocacy
Center. See Tex. Code Crim. Proc. Ann. art. 38.072 (procedural requirements to
utilize hearsay exception for a child’s first statements concerning alleged sexual
abuse).
The trial court held a hearing on the motion and heard testimony from
Aguilar and Mother. According to Mother, she was on her way to pick up her
17
children in September 2018 when she received a phone call from Father and
Complainant. Mother stated that Complainant told her Appellant “had touched her
since we lived on — in The Woodlands and he would touch her nipples, her butt
and her girl parts.” This phone call was made before Complainant’s forensic
interview with Aguilar.
At the conclusion of the hearing, the trial court determined that Mother was
the first person to whom Complainant made “a discernible statement as to the
alleged offense or sex abuse to meet the threshold requirement to be an outcry
statement.” See Nino v. State, 223 S.W.3d 749, 752 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (stating that the article 38.072 hearsay exception applies “to
the first adult to whom the complainant makes a statement that in some discernible
manner describes the alleged offense”). The trial court denied the State’s notice of
intent to use Aguilar’s testimony regarding Complainant’s forensic interview.
Trial counsel then sought to admit at trial Mother’s testimony regarding
Complainant’s outcry. But the trial court held that, because sufficient notice to use
the outcry was not provided, the testimony could not be admitted. See Tex. Code
Crim. Proc. Ann. art. 38.072 § 2(b) (party intending to offer outcry statement must
notify adverse party at least 14 days before trial).
On appeal, Appellant contends that trial counsel was ineffective for failing
to timely designate Mother as an outcry witness. Appellant asserts that the “vast
difference” between the outcry and Complainant’s later statements would have
changed the outcome of trial.
This argument fails to satisfy Strickland’s prejudice prong. See Strickland,
466 U.S. at 687-88. If the jurors had heard the specifics of Complainant’s outcry
to Mother, it is unlikely they instead would have found Appellant innocent of the
charged offense. See id. First, the outcry was consistent with Complainant’s
18
testimony at trial. Second, it is reasonable that Complainant’s outcry to Mother
would have been less detailed than her trial testimony, particularly since the outcry
was made over the telephone and in front of Father.
Therefore, we overrule Appellant’s ineffective-assistance claim based on
trial counsel’s failure to timely designate Mother as an outcry witness.
D. Failure to Preserve Error on Improper Jury Argument
Finally, Appellant asserts that trial counsel rendered ineffective assistance
by failing to pursue an objection to portions of the State’s closing argument that
referenced “prejudicial facts that were outside the record.”
During her testimony, Mother was questioned by the State about a “rough
patch” in her marriage to Appellant. Referencing an interview Mother previously
gave to a CPS caseworker, Mother was asked if she told the caseworker “that
[Appellant] would show [her] pictures of young girls?” Mother responded: “No, I
don’t remember telling her that he would show . . . me pictures of young girls.”
On redirect, Mother explained that Appellant “had shown her pictures of younger
women, younger than [her]self” who were in their “early 20s.”
During closing argument, the State asserted that Appellant had previously
shown Mother pictures “of little girls.” Appellant’s trial counsel objected to the
statement as outside the evidence and the trial court instructed the jury to
“remember the testimony that was provided during that cross-examination.” On
appeal, Appellant contends that trial counsel erred by failing to “pursu[e] his
objections to an adverse ruling or requesting a mistrial.”
However, this contention was not raised in Appellant’s new trial motion or
at the motion hearing. When an ineffective-assistance claim is not supported by an
evidentiary record, “it is extremely difficult to show that trial counsel’s
19
performance was deficient.” Abbott v. State, 611 S.W.3d 144, 153 (Tex. App.—
Houston [14th Dist.] 2020, pet. ref’d).
Here, this alleged error does not satisfy Strickland’s first prong and does not
constitute performance falling below an objective standard of reasonableness. See
Strickland, 466 U.S. at 688. Rather, trial counsel’s failure to pursue his objection
to an adverse ruling or requesting a mistrial can be construed as part of a
reasonable trial strategy. Trial counsel objected to the statements and the trial
court instructed the jury to remember the testimony from trial. Given the
tangential nature of the challenged statements, trial counsel reasonably could have
concluded that this instruction effectively resolved the issues raised by the State’s
closing argument. See Casiano v. State, 462 S.W.3d 174, 177 (Tex. App.—
Houston [1st Dist.] 2015, no pet.) (“Because jurors are presumed to follow a
judge’s instructions, an appropriate instruction generally is sufficient to cure
improprieties that occur during a trial.”). Moreover, due to the nature of the
challenged statements, trial counsel may have determined that it would be more
beneficial to Appellant’s position to not dwell on their nature or emphasize their
content to the jury. See Nadal v. State, 348 S.W.3d 304, 322 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d) (rejecting a similar argument, this court held that trial
counsel “may have concluded that to push harder than he did would have been
futile and might have drawn unwarranted attention to the prosecutor’s
statements”).
We overrule Appellant’s ineffective-assistance claim premised on this point.
Having overruled all of Appellant’s arguments, we overrule Appellant’s single
issue.
CONCLUSION
We affirm the trial court’s judgment.
20
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
21