No. 05-02-01006-CR
Opinion Filed June 12, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F99-01991-WJ. AFFIRM
Before Justices WHITTINGTON, RICHTER, and FARRIS.
The Honorable David F. Farris, Former Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
Opinion By Justice Richter.
Roderic Lee French appeals his conviction of aggravated sexual assault of a child under fourteen years of age. After a bench trial, the trial court assessed a sentence of twenty years imprisonment. In his sole issue, appellant questions whether he received ineffective assistance of counsel when counsel failed to object to the prosecutor's request during closing argument that the trial court convict appellant based on evidence not introduced during trial. We affirm.
Background
Appellant was convicted of sexually abusing his six-year-old stepdaughter, V.A. At the time of trial, V.A. was ten years old. She testified that when she was in kindergarten, appellant touched her more than once with his hand "in [her] private part" and with his mouth and penis "outside" her private part. He tried to put his penis inside her vagina. During the instances of sexual abuse, V.A.'s mother would either be asleep, upstairs, or at the clinic where she was being treated for AIDS. In July 1997, when V.A.'s mother became hospitalized, appellant dropped V.A. off at her grandmother's house. The next day, V.A. made an outcry statement to her grandmother. V.A. testified she told her grandmother about the sexual abuse approximately one week after the last incident occurred. The following Monday, V.A.'s grandmother enrolled V.A. in elementary school and told V.A.'s schoolteacher about the incident. The teacher notified Child Protective Services (CPS), and CPS made the appointment for V.A. to be physically examined. In February 1998, V.A. was taken to a doctor for a physical examination. At trial, appellant did not object when the State asked the trial court to admit V.A.'s medical records into evidence. The medical records showed there was no outcry statement made, V.A. had a vaginal discharge, a vaginal "bump," and burning during urination. The condition of her hymen indicated "old trauma — a finding specific for sexual abuse." During closing argument, appellant highlighted inconsistencies in V.A.'s testimony, including the chronology of V.A.'s life with her mother, a man named Anthony, her grandmother, and appellant. Appellant asserted that, based on her inconsistent testimony, V.A.'s testimony was not credible. Appellant also noted that the medical records expressly stated no outcry statement was made. The trial court then reviewed notations in the medical records that showed that three-and-a-half weeks before the physical examination was conducted, CPS was notified of V.A.'s discharge. The trial court wondered aloud why CPS would be involved in a case of mere discharge if the child had not been sexually abused. The State then presented its closing argument, beginning with the complained-of statement on appeal: This Court has heard enough of these cases that it — I don't have to explain or even bring an expert in here to explain to the Court about how children's [sic] memory works.
The system, as it has affected this child, has caused her to wait almost half of her life before she came in here to tell us about what the Defendant had done to her. . . .
At the close of argument, the trial court found the defendant guilty and assessed punishment. This appeal ensued. Ineffective Assistance of Counsel
In his sole point, appellant contends he received ineffective assistance of counsel when his counsel failed to object to the above-mentioned closing argument by the State during the guilt/innocense stage. Specifically, he argues that the statement exceeded the general areas of proper closing argument, and, in so doing, the prosecutor "seemed to be asking the trial judge to consider some unknown expert theory about how children confuse things over time and asked the trial court to lower the burden and some how [sic] overlook the inconsistencies in [V.A.'s] story when compared to the other evidence admitted at trial." According to appellant, this argument injected new and harmful facts into the proceeding, thereby exceeding the scope of permissible prosecutorial argument. We use the Strickland standard in evaluating ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999); Batiste v. State, 73 S.W.3d 402, 409 (Tex.App.-Dallas 2002, no pet.). To prevail on an ineffective assistance of counsel claim, appellant must show that trial counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. Batiste, 73 S.W.3d at 409 (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994)). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Id. (citing Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000)). It necessarily follows that for appellant's counsel to have rendered ineffective assistance of counsel on the ground that he failed to object to the prosecutor's improper argument, the prosecutor's argument would have had to have been improper. The general areas of proper closing argument are (1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, and (4) a plea for law enforcement. Holberg v. State, 38 S.W.3d 137, 141 (Tex.Crim.App. 2000), cert. denied, 534 U.S. 972 (2001). Here, in appellant's closing argument, defense counsel highlighted certain inconsistencies in V.A.'s recollection of the chronology of her life's events concerning where she lived and with whom. The State's argument, that the trial court was aware of how a child's memory works without having to be told as much by an expert, was merely an answer to defense counsel's argument. Therefore, the prosecutor's argument was not improper, and appellant's counsel could not have rendered ineffective assistance for failing to object to a proper argument. Appellant has not proven the first Strickland prong. Even if appellant had shown his counsel's representation fell below an objective standard of reasonableness, he has not proven that but for that representation, the outcome would have been different. Notwithstanding the child's inconsistent testimony about the chronology of her life's events, there was no inconsistent testimony that appellant sexually abused her when she was six years old. The medical records, although dated seven months after V.A. had last been in appellant's presence, showed signs of a history of sexual abuse. Based on this evidence, the trial court could have found appellant guilty. Thus, appellant has not proven the second Strickland prong. By failing to prove either Strickland prong, appellant has not shown he received ineffective assistance of counsel. We resolve appellant's sole issue against him. We affirm the trial court's judgment.