No. 05-07-01621-CR
Opinion issued January 22, 2009. DO NOT PUBLISH TEX. R. App. P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80221-07.
Before Chief Justice THOMAS and Justices LANG and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Appellant Israel Bustamante was charged with two offenses: aggravated sexual assault of and indecency with a child, his granddaughter, A.S. A jury rejected appellant's plea of not guilty and found him guilty of each offense. The trial judge assessed appellant's punishment at life in the aggravated sexual assault case and twenty years' imprisonment in the indecency case. Appellant now appeals, raising a sole "point of error:" ineffective assistance of counsel under the federal constitution. Appellant contends his trial counsel's failure to object to inadmissible testimony fell below an objective standard of reasonableness under prevailing professional norms and that had counsel objected, there is a reasonable probability the result of his trial would have been different. The State disagrees, contending appellant has not overcome the strong presumption that counsel was effective, "especially given that the objections Appellant now raises would have been at odds with counsel's defense." A claim of ineffective assistance of counsel entails two components. State v. Morales, 253 S.W.3d 686, 696 (Tex.Crim.App. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The appellant must establish both that his trial counsel performed deficiently and that the deficiency prejudiced him. Id. In evaluating the first component, reviewing courts must not second-guess legitimate strategic or tactical decisions made by trial counsel in the midst of trial, but instead "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. (quoting Strickland, 466 U.S. at 689). This means that unless there is a record sufficient to demonstrate that counsel's conduct was not the product of a 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." Id. (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005)) (internal quotation marks omitted). Appellant must rebut the stated presumption by proving by a preponderance of the evidence that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998) (per curiam); Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). Notwithstanding, trial counsel's conduct will not be supported by the presumption of competence where counsel's actions cannot be attributed to any reasonable trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). An allegation of ineffectiveness of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). A silent record does not require an appellate court to speculate on the reason for the trial counsel's decision. Jackson, 877 S.W.2d at 771.
Appellant was charged with multiple counts in a single indictment with one case number.
The State also contends appellant has inadequately briefed his claims on appeal. Notwithstanding any briefing deficiencies, we address appellant's sole point of error.
Analysis
Appellant's complaint is that his trial counsel did not object to testimony of several witnesses regarding A.S.'s credibility and did not object to certain hearsay testimony from witnesses about what the victim told them about the offenses. Those witnesses included a detective, the forensic interviewer and a friend of the victim. Appellant recognizes case law from the court of criminal appeals that direct appeal is rarely the proper procedure for deciding the issue of ineffective assistance of counsel due to the lack of a developed record and that habeas corpus is almost always the proper vehicle. See Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003); Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Nevertheless, appellant contends his case comes within those rare claims which may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record" that it may be raised on direct appeal. See Massaro v. United States, 538 U.S. 500, 508 (2003); see also Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003). In support of his claim, appellant sets out in his brief copious quotations from the evidentiary record to which he apparently claims trial counsel should have objected. Appellant also relies on cases from three intermediate appellate courts-Texarkana, Dallas, and El Paso-in which the courts found failure to object to the repeated elicitation and offer of this type of testimony to constitute ineffective assistance of counsel when presented on direct review. See Fuller v. State, 224 S.W.3d 823, 836 (Tex.App.-Texarkana 2007, no pet.) (citing Sessums v. State, 129 S.W.3d 242 (Tex.App.-Texarkana 2004, pet. ref'd) (aggravated sexual assault of a child); Miller v. State, 757 S.W.2d 880 (Tex.App.-Dallas 1988, pet. ref'd) (aggravated sexual assault of a child); and Garcia v. State, 712 S.W.2d 249 (Tex.App.-El Paso 1986, pet. ref'd) (burglary with attempt to commit indecency with a child)). In this case there was no biological evidence recovered and the examination conducted on the victim did not reveal any sexual trauma. Credibility was the sole issue for the jury. We have re-examined our opinion in Miller. The facts in this case are distinguishable from the egregious facts in Miller. Here the bolstering, if any, was indirect, not direct; in Miller there was direct expert testimony that the victim was truthful. See Miller, 757 S.W.2d at 884-85. Moreover, in Miller there was also bolstering of the credibility of the testifying witness who gave such direct expert testimony that the victim was truthful. See id. at 884. Here, there was no direct expert testimony that the victim was truthful. Expert testimony that a child exhibits behavioral characteristics typically shown by sexual abuse victims is not objectionable on the grounds that it bolsters the credibility of the victim. Cohn v. State, 849 S.W.2d 817, 820-21 (Tex.Crim.App. 1993). This evidence is distinguishable from direct expert testimony that a particular witness is truthful. Id. at 818. In both this case and Miller, the identity of the perpetrator was the core issue. As we recognized in Miller, "the egregious inadmissible testimony went to the general credibility of the witness, and, inasmuch as the State's case as to identity was based essentially on the credibility of the complainant, we conclude[d] that if it were trial strategy, it was not sound trial strategy" and appellant was prejudiced thereby. Miller, 757 S.W.2d at 885 (emphasis added). In this case, the questions of the prosecutor went to the issue of whether a sexual offense occurred rather than to the general credibility of the victim, which would encompass the perpetrator's identity. Inasmuch as the defense, including appellant himself, essentially conceded that sexual offenses occurred, appellant was not harmed by the indirect bolstering of the victim by showing that her conduct was consistent with the conduct of one having been sexually abused. Many of the questions from the record appellant quotes in his brief were not objectionable. The record before us contains no reasoning behind trial counsel's failure to object; therefore, we cannot conclude that counsel's performance was deficient. Jackson, 877 S.W.2d at 771-72. And in the face of a silent record we are not required to speculate on the reason for trial counsel's decision not to object. Id. We disagree with appellant that this case falls within the rare exception of cases on direct appeal where trial counsel's actions cannot be attributed to any reasonable trial strategy. See id. at 771. The trial record before us in this case is insufficient to show that, in failing to object, trial counsel acted outside the bounds of what any competent attorney would have done. We affirm.