Opinion
No. 05-16-00729-CR
06-26-2017
MANUEL TORRES IBARRA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F15-23400-X
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Francis
Manuel Torres Ibarra appeals his conviction for aggravated sexual assault of a child. In two issues, appellant challenges an evidentiary ruling by the trial court and contends his counsel's failure to properly object to testimony offered by the State deprived him of effective assistance of counsel. We affirm the trial court's judgment.
Appellant was indicted for sexually assaulting his girlfriend's daughter, N.P. At the time of trial, N.P. was twelve years old. As part of his defense, appellant presented the testimony of his nineteen-year-old niece, Melissa, who babysat N.P. six years earlier. Appellant's counsel questioned Melissa about threats N.P. allegedly made when she did not want to listen or do what she was told. Specifically, appellant sought to ask if N.P. threatened to falsely accuse Melissa of hitting her. The State objected that the statements were inadmissible hearsay. Appellant responded he was "getting into motive and character for truthfulness." The trial court sustained the State's objection "at this point," but allowed Melissa to testify generally that N.P. had threatened her and she had "kn[own] her to lie" in the past. Appellant did not further attempt to introduce the testimony, but made an offer of proof after the jury retired to deliberate.
In his first issue, appellant contends the trial court erred in not allowing Melissa to testify about the content of the past threats made by N.P. and the error effectively "neutered his defense." We review a trial court's decision regarding the admission or exclusion of evidence under an abuse of discretion standard. See Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge abuses his discretion if his decision falls outside the zone of reasonable disagreement. Id. If the ruling is correct under any theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient reason for the ruling. Id .
Appellant argues the evidence that N.P. threatened to make false claims of abuse in the past was relevant to show N.P. used false allegations as a tool and as her "modus operandi." For prior false allegations of abuse to be admissible, however, the defendant must show both that the prior accusations were false and that they were similar in nature to the current accusations. See Lopez v. State, 18 S.W.3d 220, 225-26 (Tex. Crim. App. 2000). In Lopez v. State, the court of criminal appeals stated allegations made by the victim two years before trial that his mother had physically abused him had nothing in common with his current allegations that he was sexually abused by an unrelated man. Id. at 226. The court concluded the earlier accusations had no probative value and the risk of undue prejudice and confusion of the issues was high. Id .
The accusations in this case are even more dissimilar than those discussed in Lopez. No evidence suggests N.P. actually made prior false allegations of abuse; only that she threatened to do so. Further, the purported threats were made six years earlier when N.P. was six years old. As in Lopez, the earlier allegations did not concern sexual abuse and do not demonstrate a pattern of behavior that would make the allegations relevant. See Enriquez v. State, No. 03-08-00760-CR, 2009 WL 3400988, at *4 (Tex. App.—Austin Oct. 23, 2009, no pet.) (mem. op. not designated for publication). Appellant has made no showing the prior threatened accusations had any bearing on motive to accuse him of sexual abuse or that the circumstances giving rise to the earlier threats were present in this case. See Hammer v. State, 296 S.W.3d 555, 565 (Tex. Crim. App. 2009). Accordingly, appellant has failed to show how the probative value of the evidence, if any, was outweighed by the undue prejudice and confusion the evidence would likely have caused. We conclude the trial court did not abuse its discretion in excluding the evidence at issue and resolve appellant's first issue against him.
In his second issue, appellant contends his trial counsel failed to properly object to certain statements made by N.P.'s therapist, Karen Esposito, and this failure deprived him of his constitutional right to effective counsel. The testimony appellant complains of occurred when the State questioned Esposito about notes she took during her therapy sessions with N.P.
State: Okay. And in those 153 pages, I believe, approximately, pages of notes, do you recall a time you questioned whether or not [N.P.] had been abused?
Defense: Objection, irrelevant.
The Court: Overruled.
Esposito: No
State: Did she present - taking her account into consideration and the symptoms that she presented with, did she present it as a survivor of child abuse?
Defense: Objection, calls for speculation, not in evidence.
The Court: She just asked her if she was an expert. Overruled.
Esposito: Can you repeat the question?
State: Yes. With your understanding, and also with [N.P.'s] account of what happened, coupled with the symptoms that she presented
with, and in your treatment of [N.P.], did she present as a survivor of child abuse?Appellant contends his counsel should have objected that Esposito's testimony was an improper comment on whether N.P was telling the truth. See Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993) (direct opinion on truthfulness of child complainant without prior impeachment inadmissible). Rather than being a direct opinion on N.P.'s credibility, however, Esposito's testimony appears to merely state that N.P. exhibited symptoms consistent with sexual abuse. Expert testimony that a witness exhibited symptoms consistent with sexual abuse is admissible. See Reyes v. State, 274 S.W.3d 724, 729 (Tex. App.—San Antonio 2008, pet. ref'd).
Esposito: Yes.
Even if Esposito's testimony could be considered improper bolstering, we cannot conclude, based on the record before us, that defense counsel's failure to make a bolstering objection amounted to ineffective assistance of counsel. To succeed in showing ineffective assistance of counsel, an appellant must demonstrate both that his counsel's representation fell below an objective standard of reasonableness and that the alleged deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A single error will not typically result in a finding of ineffective assistance. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and was motivated by legitimate trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Claims of ineffective assistance of counsel are generally not successful on direct appeal because the record is inadequately developed for an appellate court to fairly evaluate the merits of such a serious allegation. See Lopez, 343 S.W.3d at 143. The court of criminal appeals has made clear that, in most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Counsel should ordinarily be afforded the opportunity to explain his actions before being denounced as ineffective. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim App. 2012). If trial counsel is not given that opportunity, then an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. We assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined regardless of counsel's subjective reasoning. See Lopez, 343 S.W.3d at 143.
Although appellant filed a motion for new trial, the motion did not raise a claim of ineffective assistance or otherwise allow defense counsel to explain her actions at trial. The record indicates, however, that counsel's failure to object on the grounds of bolstering was motivated by strategic considerations. Immediately following the testimony, defense counsel cross-examined Espinoza about her responses.
Defense: So you never questioned whether [N.P] was telling the truth?
. . .
Esposito: That's not how I approach my treatment, no.
Defense: But that is how you answered the question, isn't it? . . . You told the prosecutor that you never questioned whether she was telling the truth; is that correct?
Esposito: That I never questioned whether she was a victim of child abuse. I feel like they are two different things.
Defense: Okay. So you never gave any thought to whether or not she was telling the truth; is that correct?
Esposito: I never thought she wasn't telling me the truth based on her behavior, her presentation, and what she was sharing in session. I just didn't have a reason. It's not my role to investigate.
. . .
Defense: Okay. Even though it's not your job to research and take up any other evidence other than what she said, you still decided you believed her; is that correct?From this line of questioning, apparently defense counsel's strategy was to challenge the basis of any opinion Esposito might have about N.P.'s credibility rather than pursue objections that might highlight the potentially damaging nature of such evidence. The questions were designed to show it was not Esposito's duty to determine whether N.P. was being truthful; she merely assumed N.P. was telling the truth for the purpose of treating her in therapy. Based on the record as a whole, we cannot conclude defense counsel's conduct was "so outrageous that no competent attorney would have engaged in it." We resolve appellant's second issue against him.
Esposito: I work under that assumption, that the child is telling the truth, I do.
We affirm the trial court's judgment.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.1
160729F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1523400-X.
Opinion delivered by Justice Francis. Justices Brown and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered June 26, 2017.