Opinion
No. 01-99-00911-CR.
Opinion issued April 10, 2003.
Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 790382.
Panel consists of Justices Nuchia, Mirabal, and Price.
Justice Margaret G. Mirabal retired on December 31, 2002. Justice Mirabal continues to sit by assignment on this case, which was submitted on November 13, 2001.
The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
OPINION ON REHEARING
We grant the State's Motion for Rehearing, withdraw our opinion issued October 24, 2002, and issue this opinion in its stead.
Appellant, Alejandro Perez, was charged by indictment with aggravated sexual assault of a child. A jury found appellant guilty as charged and assessed punishment at 11 years confinement and a $10,000 fine. We affirm.
BACKGROUND
Appellant was charged with digital penetration of the female sexual organ and the anus of his step-granddaughter, who was six years old at the time. At trial, the first witness was the complainant, then eight years old, who gave the following testimony:
Q Did you go on a trip back in the summer of 1997?
A No, I don't remember.
. . . .
Q Did you go on a trip with your paw-paw back in summer of '97?
A Yes, ma'am.
Q Is this man here, your paw-paw?
A Yes.
. . . .
Q What kind of vehicle were you in?
A I was in a truck.
. . . .
Q Have you ever been in that truck with him before?
A I don't remember.
Q Okay. Have you ever been on a long trip with him before?
A I don't know.
. . . .
Q And did you stop off one night at a truck stop?
A Yes.
The complainant then testified that the truck stop had a Wendy's restaurant, and she identified photographs of the truck stop. She also testified that she and her paw-paw were the only ones on the trip and that, at the truck stop, they slept in the truck.
Q When you got to the truck stop, what did you do first?
A I don't remember.
Q Do you remember if you ate there?
A Yes.
Q Okay. Did you eat before you went to sleep or do you know?
A I don't know.
Q Okay. Do you remember where you went to sleep?
A No.
Q Did you go to sleep on the floor or on the chair or in the back?
A I don't know.
Q When you went to sleep, do you remember if your paw-paw went to sleep with you?
A I don't remember.
Q Okay. Well, what do you recall about what happened?
A (Crying.) I don't remember.
Q [Complainant] you understand that I'm not going to go away. We're going to sit here until you're able to talk about it. Okay.
A He did something wrong that wasn't suppose to happen.
Q And you mean by "he," you mean your paw-paw?
A Yes.
Q And what did he do to you?
A He touched me where he wasn't — he touched me where he wasn't suppose to.
Q Do you remember what you were wearing?
A Yes.
Q What were you wearing, . . . ?
A I was wearing shorts with flowers on it.
Q And when he touched you, were you wearing your shorts with your flowers on them?
A Yes.
Q Let me show you this doll here. Can you show me on the doll, were you touched there?
A Right there and on behind.
Q Right there and right here? When you're talking about right here, what do you call there?
A My private.
Q Your private?
A (Nods head.)
Q And when he touched you, did he touch you on the outside or inside?
A The inside. That's all I remember.
Q Okay. When he touched you on the inside, did he touch you with his fingers?
A Yes.
Q And when you're talking about the inside, you're talking about the inside of your privates?
A I don't remember.
Q When you pointed to the doll, you indicated where was her privates? Point to them. Here?
A Right here (indicating) and behind.
Q And when he touched you, did he touch you through your clothes or did he touch you under them?
A Through them.
Q Through them? And did he touch you through your shorts or under your shorts?
A He was under them.
Q Okay. And did he touch you under your panties or over your panties?
A I don't remember.
Q Okay. When he touched you, you said he touched you inside?
A Yes.
Q Okay. Could you feel it inside?
A Yes.
Q And you indicated your privates down here?
A Right.
MS. CHAPPEL: Let the record reflect she indicated her female sex organ.
THE COURT: Granted.
Q (By Ms. Chappel) And the very back of you where did he touch you?
A On my bottom.
Q Did he touch you inside or outside?
A I have no idea.
Q Do you remember if you felt him touching you inside your bottom?
A Yeah — no.
Q Do you remember talking to me last night about this case?
A Yes.
Q Okay. Do you remember indicating to me at that time that you remembered him touching you inside your bottom?
A No.
Q You don't remember doing that?
A (Nods head.)
Q Now, when he touched you, did it hurt?
A No.
Q Did he — when he touched you, where was he laying? If you're laying here — let me get the other dolly. Okay. Show me how they were laying. Show me how they were laying.
A Okay.
Q You were laying next to each other like that?
A (Nods head.)
Q Were you laying side by side?
A I don't remember.
Q And when he touched you, do you remember how he was laying?
A No.
Q Okay. Was he laying next to you like that?
A I think so.
Q Okay. And when he touched you, what did you do?
A I don't remember.
Q Do you know if you rolled away to try to get away from him?
A Yes.
Q Okay. When did that happen?
A I don't know.
Q Okay. Do you remember after him touching you what happened?
A I think I woke up. I'm not sure.
Q You think you woke up. So, when he was doing this, were you laying there asleep?
A Yes.
Q And did it wake you up?
A A little.
Q Okay. And how many times did he touch you?
A I don't remember.
Q Did he touch you more than once?
A I don't know.
Q Do you remember telling me last night that he touched you once when you first went to bed on the front and in the back and once in the morning in the front and in the back, yes?
Q Is that what you remember happening?
A Yes.
Q So, he touched you on your private and on your bottom both at night and in the morning?
A Yes.
Q And when you talk about the bottom, are you talking about this area on the dolly?
A Yes.
MS. CHAPPEL: Let the record reflect she identified the anus?
THE COURT: Granted.
. . . .
Q And after he touched you, did you take a shower there at the truck stop?
A Yes.
Q And do you remember him putting lotion on you?
A Not really.
Q So, you don't know if he put lotion on you or not?
A No.
Q After you left that truck stop, did he ever touch you again?
A No.
Oscar Morales, a social worker and an investigator for Children's Protective Services, testified that he contacted appellant by telephone, told him of the complainant's allegations, and asked to meet him at the Seminole police station for an interview. Appellant agreed to meet with Morales. At the meeting, Morales again explained the allegations made by the complainant. Morales described appellant as "very nervous," "sweating," and stuttering. Morales testified that appellant said he and the complainant went on a road trip in appellant's semi truck and that they slept in the truck and showered and ate at a truck stop. According to Morales, appellant said he put lotion on the complainant's legs after her shower and, while putting on the lotion, "he could have poked her with his fingers." Morales testified that he asked appellant if there were any other times this could have happened, and appellant said, "Well, I did cuddle her at one time. . . . I picked her up from the buttocks, and my fingernails could have penetrated her then." Morales testified that appellant also said that, when he and the complainant stopped in Lamesha [ sic], Texas, they fell asleep and he could have "analyses penetrated" her then, too, explaining that there were two possibilities: (1) he could have been dreaming about fondling his wife and could have fondled the complainant or (2) the complainant could have fallen off the bed and he could have penetrated her as he tried to grab her. Morales testified that appellant said he did not remember if he did or did not penetrate the complainant. When asked whether appellant was denying the allegations, Morales responded, "I think so, yes."
Morales testified that he suggested meeting at the police station because CPS does not have an office in Seminole.
Barbara Razo, the fiancée of another step-grandfather of the complainant, was the designated outcry witness. She testified as follows:
Q In November of '97 did [the complainant] have the occasion to tell you about something that had happened to her?
A Yes.
. . . .
Q And was it in front of other people, or was it just to you?
A It was just to me.
Q And how did she strike up the conversation?
A She asked if she could talk to me. I said yes. She said they were having a thing in school where they talked about good touches and bad touches and she had something she wanted to tell me.
. . . .
Q And how would you describe her demeanor at that time? How was she behaving?
A She was a little apprehensive at first and then she said this to me. I just listened to her. I didn't know what she was going to do, and she said that she had something she wanted to tell me.
I said, "Go ahead. That's fine."
She asked me if I remembered when she went with her paw-paw on the truck.
I said, "Yes, I do."
She said, "Yeah that was when he bought her the little Tweety purse."
I said, "Yes, I remember."
She said, "Well they had gone there, out of town, in a truck at night. She had gone to sleep and that while she was sleeping, he pulled her panties down and touched her bottom."
. . . .
Q And she indicated to you that Mr. Perez and her were both asleep when he touched her?
A She said she was asleep. She didn't tell me what he was doing. She was asleep and he pulled her panties down and touched her bottom and then he turned her over and touched her in the front.
Q Did she indicate she woke up when he was doing that?
A She told me she was awake but she pretended to be asleep because she was frightened.
Q Now, when she's telling you that Mr. Perez touched her, did her demeanor change at all?
A She was very matter of fact about it, but as soon as she told me as soon as she got the words out, she began trembling. I didn't see it. I asked her if he had hurt her.
Q And what did she say?
A He didn't hurt me.
. . . .
Q And have you had the occasion to talk to [her] about it since then?
A Yes. [She] brings it up frequently.
Q What does she say to you?
A She didn't say specifically. If she sees something on television or [hears] of someone being hurt, she says my paw-paw did something to me. My feelings were hurt when that happened to me. Things like that.
Appellant testified at the guilt-innocence phase of the trial. He testified that the complainant made a trip with him from Seminole to Houston to deliver a load of watermelons. After dropping off the watermelons, he drove to a truck stop to call a broker to see if he could get another load. They took a nap at the truck stop, and then they ate. Appellant testified that, after eating, the complainant took a shower first, and then he showered. After his shower, he took another nap because he had driven all night. He woke up at about 11:00 p.m. when someone knocked on the truck door and asked if he was getting a load in the morning. When he woke up, the complainant was beside him on the bed. He later testified that, when he heard the knock on the door, he rolled over to open the door and he could have grabbed her, "but I didn't [sic] anything was wrong." When asked if his nail might have penetrated the complainant at that time, he said, "I didn't say, 'penetrated.' I put my hands on her maybe. . . ."
When asked whether he put lotion on the complainant's legs after she showered, appellant said, "I put some on her. I could have gotten close to her. I do have long nails, but I don't think I got that close. . . ." When asked whether he penetrated the female sexual organ or the anus of the complainant, he said, "No, sir." Regarding the testimony of Morales, appellant said, "Well, he stated that I told him I penetrated her. I told him I could have gotten close with my nails, but I didn't think so. He left that out." Appellant also testified that, while they were sleeping at Lamesha [ sic], there was a storm and the complainant was afraid. He said, "I was laying on my bunk. She reached over here, and I pushed her up. That's the only time I had any contact with her bottoms."
On cross-examination, appellant admitted that he told Morales that he "could have poked" the complainant's vagina when he was putting lotion on her legs and that he could have grabbed her when someone knocked on the door and woke him up. However, he stated, "I didn't say, 'penetrated.' I put my hands on her maybe." He also testified that, when they were in Lamesha [ sic], the complainant was sleeping on the floor of the truck's sleeping area and he was sleeping on the bed when the storm came in. He said the complainant woke him up and jumped on the bed with him and that he reached back to push her up. When asked about slipping inside her while putting on the lotion, he said, "I don't think I did, ma'am." When asked whether he said he could have penetrated her anus, he responded, "I didn't say about penetrating. I said I could have touched it." The State elicited the following testimony:
Q And you're telling the ladies and gentlemen that you're not sure if you touched her or not?
A I know I didn't touch her.
Q Now, you're saying you know you didn't touch her. Didn't you say you could have?
A I don't think it was that close. I could have scratched her with my nails.
Q Are you telling the ladies and gentlemen you could have touched [the complainant]'s vagina?
A No.
Q Isn't it true that's what you told Oscar Morales?
A No.
Q Isn't it true that's what you told the jury previously when you were putting lotion on her, you could have touched her?
A I could have. I don't think I did.
Q My question is: Aren't you admitting to the ladies and gentlemen that you could have touched her vagina when you were putting lotion on her?
A No.
Q What about touching her anus?
A No.
Q You're saying you could have, you did or you saying you don't remember?
A I don't think I did.
Q You don't think you did. Is that what you're saying but you're not adamantly denying it?
A At the time I was asleep I don't know if I grabbed her or not.
Q When you were putting lotion on her, you weren't asleep, were you?
A No.
DISCUSSION
Appellant's first four issues complain of evidentiary rulings by the trial court. We review a trial court's rulings on the admissibility of evidence for abuse of discretion. Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App. 1999).
1. Statement about polygraph
In his first issue, appellant contends the trial court erred in failing to sustain the defendant's objection to the mention of a polygraph examination. Appellant correctly states the law — that the results of polygraph examinations are inadmissible and that admission, over objection, of testimony of a defendant's refusal to take a polygraph has been held to be reversible error — citing Kugler v. State, 902 S.W.2d 594 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd), and Sparks v. State, 820 S.W.2d 924 (Tex.App.-Austin 1991, no pet.). However, in the present case, neither the results of a polygraph examination nor the refusal to take a polygraph examination is the issue.
At trial, during the testimony of Oscar Morales, Morales was asked:
Q And after you conducted your interview with Mr. Perez, what did you do next?
A I then contacted, I want to say, the Midland DPS office to try to set up a polygraph.
MR. LOPEZ: Objection, Your Honor, mention of polygraph.
THE COURT: Overruled.
Q Without getting into any of that information, did you then refer this to a police agency?
No further reference was made to a polygraph examination.
We agree that the trial court should have sustained appellant's objection to the mention by the witness of a polygraph examination. However, the mere mention of a polygraph examination does not automatically constitute reversible error. Peake v. State, 822 S.W.2d 166, 169 (Tex.App.-Houston [1st Dist.] 1991, no writ). Here, the error was harmless because the witness did not reveal whether a polygraph examination was actually offered or taken. See id. In addition, there was no further statement regarding a polygraph examination.
We overrule appellant's first issue.
2. Challenge to credibility of complainant
In his second issue, appellant contends the trial court erred in denying the defendant the right to challenge the credibility of the victim. Appellant complains that he was denied the right to confront his accuser because he was not permitted to question the complainant about whether she had ever lied or about specific incidents in which she was alleged to have made false statements.
On cross-examination of the complainant, the following occurred:
Q Now, have you ever told a lie before?
A To my mom.
[STATE]: Objection, relevance, Judge.
THE COURT: Sustained.
Q Do you remember back after this past Christmas, did you ever tell somebody at school that your parents didn't have any food at the house?
A No, I don't remember.
Q Did you tell them that or not?
A I don't remember.
[STATE]: Objection to relevance to this line of questioning, Judge.
THE COURT: Sustained.
In a bill of exception, appellant offered testimony of the complainant's father in which he said that, to his knowledge, the complainant had not told people at school they did not have food in their home. He also testified, in the bill of exception, that, on one occasion, when the complainant was three or four years old, she "had said something about" hearing or seeing her mother have sex with her boyfriend. This testimony was not admitted before the jury.
Rule 608(b) of the Texas Rules of Evidence provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
In Lopez v. State, the Court of Criminal Appeals held that there is no per se exception to rule 608(b) for sexual offenses. 18 S.W.3d 220, 225 (Tex.Crim.App. 2000). However, the court recognized that the Confrontation Clause of the Sixth Amendment may require the admissibility of evidence that would be excluded by the Rules of Evidence. Id. To determine whether the Confrontation Clause required the admission of such evidence, the court balanced the probative value of the evidence in question against the risk entailed by its admission. Id.
In the present case, appellant sought to question the complainant regarding two incidents: (1) whether she told someone at her school that her parents had no food in the house and (2) whether she told her father that she had seen or heard her mother and her mother's boyfriend engage in sex. Appellant offered no evidence in his bill of exception to support his suggestion that appellant told someone at her school that her parents had no food in the house. In addition, no evidence was offered in the bill of exception to establish that the complainant's comment about seeing or hearing her mother engage in sex was untrue. The testimony on these issues was not probative of the complainant's credibility and does not implicate the Confrontation Clause.
The trial court did not abuse its discretion in sustaining the State's objection to these questions. Accordingly, we overrule appellant's second issue.
3. Multiple outcry witnesses
In his third issue, appellant contends that he was improperly convicted on the testimony of multiple outcry witnesses. Appellant concedes that the testimony of the designated outcry witness was properly admitted, but challenges the testimony of three additional witnesses regarding statements made to them by the complainant.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired, and either the trial court must have ruled on the issue, or the complaining party must have objected to the trial court's failure to rule. Tex.R.App.P. 33.1. The record reflects that appellant did not object to the testimony of any of the outcry witnesses. Therefore, the issue was not preserved for appeal. See Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd).
We overrule appellant's third issue.
4. Statements made before Miranda warnings
In his fourth issue, appellant contends the trial court erred in admitting statements made by appellant to an investigator for CPS before appellant was given his Miranda warnings. Appellant argues that the CPS investigator was a "state actor" who saw himself in "an investigative role for the State."
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966). In addition to the Miranda warnings, the Texas statute adds the right to terminate the interview at any time. Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a)(5) (Vernon 1979).
The CPS investigator testified about his interview with appellant without objection. Therefore, appellant has not preserved this complaint. See Solis, 945 S.W.2d at 301; Tex.R.App.P. 33.1. Accordingly, we overrule appellant's fourth issue.
5. Ineffective assistance of counsel
In his fifth issue, appellant contends that he did not receive effective assistance of counsel at the trial level. Appellant argues that trial counsel was ineffective because he failed to object (1) to testimony by four "outcry" witnesses, which had the effect of bolstering the victim's testimony; (2) to the testimony of the CPS child interviewer as an expert regarding the stages and degrees of disclosure and relating them to the present case; (3) to testimony regarding statements made by appellant before he was given Miranda warnings; (4) to the appellant's being required to show his hand to the jury; and (5) to the admission of medical reports containing an assertion that the child was a victim of child abuse. Appellant also contends that trial counsel was ineffective in failing to make an opening statement and in failing to cross-examine the initial outcry witness.
The child interviewer was employed by Harmony Children's Advocacy Center, which receives referrals from CPS.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Thompson, 9 S.W.3d at 812; Gamble, 916 S.W.2d at 93.
It is the defendant's burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Gamble, 916 S.W.2d at 93. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.
Appellant does not provide us with adequate record references to support most of his complaints regarding the alleged ineffectiveness of trial counsel. However, it is clear that most of his complaints are without merit. The CPS interviewer testified regarding her qualifications by education and experience in dealing with children who were victims of sexual abuse. See Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998) (listing appropriate questions to be asked in determining who may be a proper expert witness in areas outside of hard science). The trial court would not have abused its discretion in overruling any objection to her testimony as an expert limited to the area of interviewing child victims of sexual abuse. Likewise, the trial court would not have abused its discretion in overruling any objection to the testimony of the CPS investigator regarding "pre- Miranda" statements because the investigator did not conduct a custodial interrogation of appellant. See Hernandez v. State, 819 S.W.2d 806, 815 (Tex.Crim.App. 1991). Rather, appellant voluntarily came to the police station for the interview, knowing the accusation against him. Appellant's complaints regarding the testimony of the CPS interviewer and the investigator are without merit because the failure to object to admissible testimony is not ineffective assistance of counsel. See Burruss v. State, 20 S.W.3d at 179, 188 (Tex.App.-Texarkana 2000, pet. ref'd).
The Texas Court of Criminal Appeals has said, "We would caution trial courts to ensure that witnesses who purport to be 'experts' on child sexual abuse are duly qualified as such." Yount v. State, 872 S.W.2d 706, 710 n. 6 (Tex.Crim.App. 1993). The court cited various authorities for the proposition that there are a few who are qualified as experts in the field and that courts should ensure that those claiming expertise in the field are truly qualified. Id. The court went on to say, "Further, the testimony given should be scrutinized for its probative value." Id.
Appellant does not inform us of the nature of his objection to being required to show his hand to the jury. However, we note that being required to exhibit physical characteristics is not a violation of the privilege against self-incrimination because such demonstrations are not testimonial. See Holder v. State, 837 S.W.2d 802, 805 (Tex.App.-Austin 1992, pet. ref'd).
Although appellant complains about trial counsel's failure to make an opening statement or to cross-examine the primary outcry witness, he does not explain how the result might have been different if counsel had made an opening statement or cross-examined the witness. Defense counsel often waives opening statements as a matter of trial strategy. See Davis v. State, 22 S.W.3d 8, 12 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Likewise, trial counsel may decide not to cross-examine a witness when cross-examination is more likely to bolster, rather than to impeach, the witness's testimony. See Dannhaus v. State, 928 S.W.2d 81, 88 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). The complaints regarding the failure to make an opening statement and to cross-examine one witness are without merit.
Appellant also complains that trial counsel did not object to the admission of the complainant's medical records. The complainant was examined by a physician on November 25, 1997, approximately three months after the alleged sexual abuse. The records bear the notation, "Check for possible sexual molestation Happen in August." Under "History" is written,
Trouble paying attn in class. Alleged sexual molestation by G.F. Story of rubbing perinium some sort of penetration Aug — Adjustment problems getting up @ night poor school performance since then. Small child, happy, well adjusted, very active, alert bright.
The report contains no indication of any physical signs of sexual abuse. At the bottom of the report is written, "Imp: Likely sexual molestation." There is also the notation, "Report to child protection." The examining physician did not testify at trial. The medical report was offered at the close of the complainant's father's testimony. Trial counsel stated, "We have no objections," and the report was admitted.
The complainant's medical records were admissible under rule 803(6) as records of regularly conducted activity and rule 902(10) as business records accompanied by an affidavit. See Tex.R.Evid. 803(6), 902(10). The only portion of the medical records that appellant complains about on appeal is "a written assertion that the child was the victim of abuse." In fact, the records state, "Likely sexual molestation." However, the records could also be seen as favorable to appellant because they show that there was no physical indication of sexual abuse and, in addition, the examining physician noted that the appellant was happy and well-adjusted. Therefore, counsel's failure to object to the admission of the medical records could have been sound trial strategy.
Appellant complains about trial counsel's failure to object to the testimony of three "secondary" outcry witnesses, arguing that their testimony was hearsay that bolstered the testimony of the complainant and impermissibly testified to the credibility of the complainant.
The three "secondary" outcry witnesses testified before Razo, the designated outcry witness, gave her testimony. Much of the testimony of the three witnesses was concerning their observations of the complainant and her demeanor after the events in question. However, each of these witnesses testified to statements made by the complainant that, upon objection, should have been excluded as inadmissible hearsay. See Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990) (outcry witness must be first person, 18 years old or older, to whom child makes statement that describes alleged offense; only first person to hear such statement is allowed to testify); Broderick v. State, 35 S.W.3d 67, 73 (Tex.App.-Texarkana 2000, pet. ref'd) (before more than one outcry witness may testify, the outcry must be about different events, and not simply a repetition of same event as related by victim to different individuals); see also Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2) (Vernon Supp. 2003) (statements by child victim 12 years of age or younger describing sexual offense made to the first person 18 years of age or older are not inadmissible on the basis of hearsay).
Effective assistance of counsel does not mean counsel that makes no error. See Saylor v. State, 660 S.W.2d 822, 824 (Tex.Crim.App. 1983). In determining whether counsel was ineffective, we must consider the totality of the evidence and the circumstances of the particular case. Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. Trial strategy will be reviewed by appellate courts only if the record demonstrates that the action was without any plausible basis. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex.Crim.App. 1978).
Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002).
In the absence of evidence of counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001); see Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999).
Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. Bone, 77 S.W.3d at 836. His counsel should ordinarily be accorded an opportunity to explain his or her actions before being condemned as unprofessional and incompetent. Id.
The record is silent as to why appellant's trial counsel did not object to the witnesses' testimony. To find that trial counsel was ineffective would call for speculation, which, we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).
We hold that appellant has failed to meet his burden of proving that his trial counsel was ineffective and that he was prejudiced by counsel's failure to object. Accordingly, we overrule appellant's fifth issue.
We affirm the judgment of the trial court.
The motion for en banc review is denied as moot.