Opinion
NO. 01-07-00801-CR NO. 01-07-00802-CR NO. 01-07-00803-CR
01-26-2012
TRACY PAUL TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1094960, 1129515, & 1129516
MEMORANDUM OPINION
After a joint trial on three separate indictments, a jury found appellant, Tracy Paul Taylor, guilty of three offenses of aggravated sexual assault of a child. For each offense, the jury assessed appellant's punishment to be 70 years in prison and assessed a $10,000 fine. The trial court cumulated two of the three sentences.
Appellant appealed each judgment of conviction, raising three identical issues in each appeal. Appellant's first and third issues are based on claims of ineffective assistance of counsel at trial. In his second issue, appellant asserted that the trial court had erred because it did not sua sponte instruct the jury that it could not consider appellant's conduct before his seventeenth birthday as a basis for conviction.
On original submission, we sustained appellant's second issue, holding that the trial court had erred by failing to instruct the jury that it could not consider any acts committed by appellant before his seventeenth birthday to support a guilty finding. Taylor v. State, 288 S.W.3d 24, 28 (Tex. App.—Houston [1st Dist.] 2009, pet. granted) (Taylor I). Holding the error to be egregiously harmful, we reversed the trial court's judgment in each case and remanded for further proceedings. Id. at 31. We did not reach appellant's remaining two issues.
The Court of Criminal Appeals granted the State's petition for review in each case. Taylor v. State, 332 S.W.3d 483, 485 (Tex. Crim. App. 2011) (Taylor II). Although it agreed that the trial court had erred by failing to instruct the jury that it could not consider appellant's conduct pre-dating his seventeenth birthday in determining appellant's guilt, the Court of Criminal Appeals held that this Court erred by concluding that appellant was egregiously harmed by the trial court's error. Id. at 493. The Court of Criminal Appeals reversed our judgments in each case and has remanded these three appeals to us to consider appellant's first and third issues in which he claims that he received ineffective assistance of counsel at trial.
We affirm in each appellate cause.
Background
The background of these appeals is detailed in our earlier opinion and in the Court of Criminal Appeals' opinion. We briefly summarize the facts as follows.
In each case, appellant was indicted for the offense of aggravated sexual assault of J.G., a child under the age of 14 years. Appellant was charged with intentionally and knowingly causing the penetration of (1) J.G.'s sexual organ with his sexual organ on or about September 1, 2002, (2) J.G.'s mouth with his sexual organ on or about September 15, 2002, and (3) J.G. 's anus with his sexual organ on or about September 30, 2002. In September 2002, appellant was 17 years old, and J.G. was 12 years old.
At trial, the evidence showed that when she was eight years old (and appellant was 13 years old), J.G. began staying at the home of appellant's mother before and after school and in the summer, while J.G.'s father worked. J.G.'s father paid appellant's twin sister, Sheena, to babysit J.G. until he picked her up after school.
J.G. testified that she could not remember how old she was when appellant first sexually assaulted her, although she did recall that one of the earlier instances occurred when she was in the fifth grade. The assaults continued over a number of years. J.G. testified that she could remember some instances of sexual assault clearly while others she could recall only in flashes. J.G. testified about a number of the instances in detail describing how appellant assaulted her orally, vaginally, and anally with his penis and with foreign objects. J.G. said that the abuse occurred "a lot" and that appellant sexually assaulted her almost every time she went to his mother's house. J.G. testified that the "worst" abuse occurred between the time she was in the sixth grade (when she was 10 and 11, and appellant was 15 and 16) and the eighth grade (when she was 12 and 13, and appellant was 17 and 18). J.G. also stated that appellant "did it a lot" when she was in the seventh, eighth, and ninth grades, usually after school. J.G. testified that appellant continued to sexually assault her until she was 15 years old. When she was 16 years old, J.G. made an outcry to appellant's sister-in-law regarding the sexual abuse by appellant.
During its case-in-chief, the State offered the testimony of the pediatrician who had examined J.G. following the outcry. The examination revealed that J.G. was healthy, with no signs of trauma. The doctor testified that a normal exam is the most common finding in children who have been sexually abused because the vagina heals quickly, and it is not uncommon for the hymen to remain intact. The State also presented the testimony of two psychologists, who provided testimony explaining why children often do not report long-term sexual abuse.
During the defense's case-in-chief, a number of witnesses testified that appellant was never alone with J.G. Such testimony raised the inference that appellant did not have the opportunity to abuse J.G.
In its closing argument, the defense's theory was that appellant never sexually assaulted J.G. Appellant argued that the evidence was not sufficient to prove beyond a reasonable doubt that he assaulted J.G. Appellant emphasized the testimony of several witnesses that he was never alone with J.G. during the eight-year period when the abuse allegedly occurred.
In each case, the jury charge erroneously instructed the jury that a conviction could be had for offenses "committed at any time within the period of limitations," which was "ten years from the date of the 18th birthday of the victim of the offense." No instruction was given to the jury that it should not consider as a basis for conviction, acts committed by appellant before his seventeenth birthday, and appellant's trial counsel made no objection to the jury charges on this ground. The jury found appellant guilty in each case of the offense of aggravated sexual assault of a child.
During the punishment phase of trial, the State's evidence included testimony regarding unadjudicated extraneous offenses and prior bad acts. In particular, the jury heard testimony that (1) appellant began "dating" his wife when she was 13 years old; (2) when he was between the ages of 10 and 12, appellant was caught lying on top of a three-year-old girl with his and her pants pulled down; and (3) appellant had been accused by his four-year-old niece of "scratching" her genitals.
Appellant testified at the punishment phase. He denied J.G.'s allegations of sexual assault but did admit to having sexual intercourse with his wife when she was a minor.
For each offense, the jury sentenced appellant to 70 years in prison and assessed a $10,000 fine. In response to a motion by the State, the trial court cumulated two of the three sentences.
Appellant filed a motion for new trial in each case. He asserted that he received ineffective assistance during the guilt-innocence and punishment phases of trial. To support his motion, appellant offered the affidavit and live testimony of numerous lay and expert witnesses. Trial counsel did not testify, either in person or by affidavit, at the hearing on the motion. The trial court denied appellant's motion for new trial.
Appellant appealed the three judgments of conviction. He presented the same three issues for our review in each appeal. We sustained appellant's second issue in which he asserted that the trial court had erred by failing to, sua sponte, instruct the jury regarding the law applicable to the case, namely that pursuant to Penal Code section 8.07(b), "a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age." See Taylor I, 288 S.W.3d at 28 (citing TEX. PENAL CODE ANN. § 8.07(b) (Vernon 2011)). We held that the error was egregiously harmful and reversed the trial court's judgment in each case. Id. at 30. We did not reach appellant's remaining two issues in which he asserted that (1) the trial court abused its discretion when it denied his motion for new trial and (2) he received ineffective assistance of counsel because his trial counsel failed to object to the jury charged on the ground that it did not instruct the jury that it could not consider as evidence of guilt his conduct occurring before his seventeenth birthday.
The Court of Criminal Appeals granted the State's petition for review in each case. Taylor II, 332 S.W.3d at 485. The court agreed with our holding that the trial court had erred by failing to instruct the jury that it could not consider appellant's conduct pre-dating his seventeenth birthday in determining appellant's guilt. Id. at 488-89. The Court of Criminal Appeals disagreed with our conclusion that the error was egregiously harmful and reversed our judgment in each case. Id. at 493. The court has remanded these three appeals to us to consider appellant's remaining two issues. Id.
Motion for New Trial
In his first issue, appellant contends that the trial court abused its discretion when it denied his motion for new trial. Appellant contends that he was entitled to a new trial because his trial counsel was ineffective. Specifically, appellant faulted his trial counsel for (1) failing to hire and present expert witnesses to rebut the State's experts; (2) failing to call witnesses to testify about J.G.'s motive for making the sexual-assault allegations; (3) failing to call witnesses to rebut the State's extraneous offense evidence; (4) failing to call character witnesses; (5) permitting appellant to testify at the punishment phase regarding his eligibility for community supervision when other witnesses could have established his eligibility; (6) failing to prepare defense witnesses to testify; (7) failing to understanding the applicable law; and (8) failing to request a limiting instruction.
A. Standard of Review
We review the trial court's refusal to grant a new trial for abuse of discretion. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding appropriate standard of review for ineffective assistance claim brought forth in motion for new trial is abuse of discretion), superseded by statute on other grounds as stated in State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). When, as here, the motion for new trial alleges ineffective assistance of counsel, we must determine whether the trial court's determination of the ineffective assistance claim and denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement. Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). "We must view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party." Charles, 146 S.W.3d at 208.
B. Applicable Legal Principles
To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.
Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and counsel's performance will be found deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101.
The Court of Criminal Appeals recently stated that "[i]n making an assessment of effective assistance of counsel, an appellate court must review the totality of the representation and the circumstances of each case without the benefit of hindsight." Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The court further stated that demonstrating ineffective assistance of counsel on direct appeal is "a difficult hurdle to overcome." Id. The court instructed, "[T]he record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of his or her subjective reasoning." Id.
C. Analysis
It is significant that appellant's trial counsel did not testify at the motion for new trial hearing or by affidavit. Without her testimony, we are left to speculate what counsel's trial strategy was with respect to each complaint appellant raises against her. Because the record does not offer an explanation for her actions, we presume that trial counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Without testimony from trial counsel, we cannot meaningfully address trial counsel's strategic reasons for the actions that appellant alleges constitute ineffective assistance. See Crawford v. State, No. 01-10-00559-CR, 2011 WL 1835270, *5 (Tex. App.—Houston [1st Dist.] May 12, 2011, pet. ref'd) (citing Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd)). Against this backdrop and with the applicable legal principles in mind, we review the trial court's decision to deny appellant's motion for new trial.
1. Hiring and Presenting Expert Witnesses
Appellant first contends that he was denied effective assistance of counsel at trial because his counsel did not investigate and present expert testimony to rebut the expert testimony of the State's medical and psychological experts. Specifically, appellant contends that his trial counsel should have hired a medical expert not only to consult with her, but also to provide testimony rebutting the State's medical expert. The State's medical expert, the pediatrician who examined J.G. after her outcry, testified regarding the fact that the exam showed that J.G.'s hymen was intact, despite J.G.'s allegations of sexual abuse over many years, including vaginal penetration by foreign objects. The doctor testified that it is not uncommon for a girl's hymen to remain intact even after sexual intercourse. The doctor cited a study involving 36 pregnant teenage girls. The doctor testified that of those 36 girls, only two showed evidence of vaginal penetration, despite being pregnant.
In support of his motion for new trial, appellant offered the affidavit of a forensic nurse. The nurse stated that she could have assisted trial counsel in preparing for the cross-examination of the State's medical expert and could have educated the jury about anatomical structures. She stated that she could have pointed out that the study cited by the doctor "was not really relevant" to the charges against appellant.
Appellant also asserts that his defense counsel should have retained an expert to rebut the testimony of the State's mental health experts. Appellant offered the affidavit of a clinical psychologist, who testified that retention of an expert was "essential to assist the defense attorney in developing appropriate paths of inquiry and cross-examination strategies." The psychologist opined that defense counsel had not adequately cross-examined the State's psychologist and offered "possible valuable avenues of inquiry." The psychologist also stated that a defense expert could have refuted the testimony offered by the State's expert that (1) an abuse victim will sometimes tolerate abuse to maintain the relationship with the abuser and (2) a sexual abuse victim may place herself in situation in which she will be abused again.
Appellant also presented the affidavit of a criminal defense attorney, who had represented appellant in another sex abuse case in which appellant had been charged with sexually abusing his niece. In her affidavit, the attorney opined that expert witnesses "in these types of cases" are necessary to rebut the State's expert witnesses.
As pointed out by appellant, trial counsel has a duty "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). Here, the trial court had no way of knowing the extent of defense counsel's investigation because she did not testify. In other words, defense counsel may have consulted with medical and mental health experts before trial and made strategic choices to conduct the defense in the manner in which she did. "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S. Ct. 2527, 2535 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S. Ct. 2052).
When an appellant argues that his trial counsel's conduct amounted to ineffective assistance by failing to call an expert witness, the appellant must show that the expert's testimony would have been beneficial to him. See Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref'd); Teixeira v. State, 89 S.W.3d 190, 194 (Tex. App.—Texarkana 2002, pet. ref'd). The record shows that, on cross-examination, the State's medical expert acknowledged that the findings she made following her medical examination of J.G. were also consistent "with someone who had not been sexually assaulted." Defense counsel also cross-examined the psychologist treating J.G. The psychologist testified that all the signs and symptoms exhibited by a child attributable to sexual abuse can also be exhibited by children who have not been sexually abused. Defense counsel may have made the strategic choice to use the State's expert witnesses to support appellant's position that J.G. was lying about the abuse by highlighting that the testimony of the State's own experts did not serve to prove that the abuse had occurred. Defense counsel may have taken the strategic risk that such testimony would be more powerful and effective coming from the State's witnesses than from a hired defense expert.
"If counsel's reasons for [her] conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). The trial court could have properly concluded that appellant did not show defense counsel's performance, relating to the hiring and presenting of defense experts, was not the product of a legitimate strategic decision and, thus, was not so outrageous that no competent counsel would have engaged in it. See Lopez, 343 S.W.3d at 143-44.
2. Counsel's Conduct Related to Witnesses
Appellant also asserts that his trial counsel's performance was deficient because she did not call certain witnesses (1) to explain J.G.'s alleged motivation for making false accusations against appellant; (2) to rebut the extraneous offense evidence offered during the punishment phase; and (3) to testify regarding appellant's character during the punishment. To support this assertion, appellant offered the affidavit testimony of a number of persons, who each stated that he or she was willing and able to testify in support of the defense. Appellant also complains that it was unreasonable for his trial counsel to permit him to testify during the punishment phase because she knew that appellant "would admit to sex with a minor" while also denying that he had sexually assaulted J.G.
In addition, a number of the affiants stated that trial counsel did not contact him or her before trial. Appellant asserts this demonstrates counsel's failure to conduct an adequate investigation. Lastly, a number of the affiants, who did testify at trial, averred that trial counsel did not adequately prepare him or her to testify.
We agree with the State that the decision whether to present witnesses is primarily a matter of trial strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005), pet. dism'd, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007)) (citing Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd)). Moreover, an attorney's decision not to present particular witnesses at the punishment stage may be a strategically sound decision if the attorney bases it on a determination that the testimony of the witnesses may be harmful, rather than helpful, to the defendant. Id. Trial counsel's failure to call the witnesses identified by appellant may have been based on a trial strategy, and, because trial counsel did not testify, the trial court had nothing before it to suggest otherwise. See Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet. ref'd) (holding that it is trial counsel's prerogative, as a matter of trial strategy to decide which witnesses to call).
Additionally, without testimony from trial counsel, the trial court was uninformed with regard to the extent and adequacy of counsel's investigation. Cf. Shanklin, 190 S.W.3d at 164 (holding counsel's investigation deficient in case in which trial counsel testified that he conducted no meaningful investigation and his decision not to investigate was not result of trial strategy). Similarly, the trial court did not have the benefit of counsel's testimony with respect to the amount of time she spent on witness preparation. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (stating record was insufficient to support ineffective assistance of counsel claim when record was silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses). And, the record is silent with regard to why appellant testified at the punishment phase. A defendant ultimately controls whether he testifies at trial. See Burnett v. State, 642 S.W.2d 765, 768 n.8 (Tex. Crim. App. 1982). The trial court was presented with no evidence that counsel advised appellant to testify. In the absence of evidence in the record of trial counsel's reasoning, it was proper for the trial to conclude that any act or omission relating to witnesses presentation was not so outrageous that no competent attorney would have done the same. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Moreover, a trial court may consider the interest and bias of any witness and is not required to accept as true the testimony of the accused or any defense witness simply because it was uncontradicted. Shanklin, 190 S.W.3d at 166-67. A trial court is not required to believe factual statements contained within an affidavit, even when they are uncontradicted by other affidavits. Id. at 167 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)). Here, the trial court was entitled to disbelieve the factual statements made by the affiants in support of the motion for new trial. Specifically, the trial court was permitted to disbelieve any affiant's statement that he or she was not contacted by trial counsel or that trial counsel did not adequately prepare the witness for testifying. See id.
Appellant has not shown that the trial court abused its discretion by rejecting his ineffective assistance of counsel claims arising from counsel's pre-trial investigation, counsel's decision to call certain witnesses and not others, and counsel's witness preparation.
3. Counsel's Knowledge of the Law
Appellant further contends that his counsel was ineffective because she did not understand certain legal principles. It has long been held that a criminal defense lawyer must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance of counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).
Appellant asserts that trial counsel did not understand that the "on or about" language of an indictment "allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period." See Sledge v. State, 953 S.W.2d 253, 255-256 (Tex. Crim. App. 1997). Appellant points out that trial counsel moved for directed verdict on the ground that the State had not shown that any assaults occurred in September 2002, as alleged in the indictments. Appellant also points to affidavit testimony from witnesses who stated that counsel's investigator wanted to discuss events only in 2002. Appellant asserts that this shows that trial counsel misunderstood the significance of the "on or about" language in the indictments. He contends that she did not know that the State was not required to prove that the sexual assaults occurred on the specific dates identified in the indictments. As the Court of Criminal Appeals has stated, "[T]rial counsel should ordinarily be afforded an opportunity to explain [her] actions before being denounced as ineffective." Rylander, 101 S.W.3d at 111. Here, counsel did not testify. Without more than that cited by appellant, the trial court could not determine whether counsel had an adequate command of the law as "[t]he reasonableness of counsel's choices often involves facts that do not appear in the [] record." Id. at 110 (citing Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)).
Appellant also points out that trial counsel did not request the State to elect the specific act of sexual assault on which it was relying for conviction in each case. She asserts this also shows that counsel was not knowledgeable about the applicable law.
If one act of sexual assault is alleged in the indictment but more than one act is shown by the evidence presented at trial, "the State must elect the act upon which it would rely for conviction." O'Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). After the State rests its case-in-chief, on a timely request by the defendant, the trial court must order the State to elect the act on which it will rely for conviction. Phillips v. State, 193 S.W.3d 904, 909 (Tex. Crim. App. 2006); O'Neal, 746 S.W.2d at 771. Failure to do so constitutes error. O'Neal, 746 S.W.2d at 772. Absent a request, however, the State is not required to make an election and no error is implicated. See id. at 771 n.3; Crawford v. State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985). Here, trial counsel did not request the State to make an election.
If there is any plausible basis for counsel's action, we may not speculate on the reasons for that action when the record contains no evidence of them. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A decision not to request an election could have been sound trial strategy. See Brown v. State, 6 S.W.3d 571, 577 (Tex. App.—Tyler 1999, pet. ref'd) ("Counsel could have reasonably believed that not requesting an election was the most prudent and effective course, since this course would bar any subsequent prosecution for any of the instances of the charged conduct."). Thus, the trial court could have properly concluded that appellant failed to show that counsel's performance fell below an objective standard of reasonableness.
Lastly, appellant contends that trial counsel misunderstood the law because she did not request a limiting instruction when J.G. testified about other extraneous acts of sexual abuse appellant committed against her. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2 (Vernon Supp. 2011) (providing that in prosecuting certain sexual offenses, evidence of other acts committed by defendant against victim is admissible notwithstanding rules 404 and 405 of Texas Rules of Evidence). The record contains no explanation for trial counsel's decision not to request a limiting instruction. Absent an explanation for trial counsel's omissions, the failure to request a limiting instruction does not compel a conclusion that trial counsel's performance was deficient, and the trial court could have properly concluded as much. See Beheler v. State, 3 S.W.3d 182, 185-86 (Tex. App.—Fort Worth 1999, pet. ref'd) (holding that because the record was devoid of anything that reflected defense counsel's reasoning for not requesting a limiting instruction on extraneous offenses, appellate court must defer to the Strickland presumption that defense counsel's decisions were a part of a sound trial strategy).
For the reasons discussed, the trial court did not abuse its discretion when it denied his motion for new trial. We overrule appellant's first issue in each appeal.
Failure to Object to Lack of Jury Instruction
In his third issue, appellant asserts that he received ineffective assistance of counsel at trial because counsel did not object to the jury charge on the basis that it did not instruct the jury not to consider appellant's conduct before his seventeenth birthday as evidence of guilt. See PENAL CODE ANN. § 8.07(b) (providing "a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age"). In supplemental briefing on remand, appellant points out that the Court of Criminal Appeals held that the trial court was required to give the section 8.07 instruction because the instruction is the law applicable to the case and not a defensive issue. Taylor II, 332 S.W.3d at 487. For this reason, he asserts that there can be no possible strategic reason for failing to object to the lack of an instruction.
In this regard, the Court of Criminal Appeals explained:
A feature of a defensive issue is that it is a strategic decision "generally left to the lawyer and the client." However, the applicability of Section 8.07(b) is not contingent upon any party's theory of the case. It is not within the defendant's (or counsel's) discretion to decide whether or not he may be prosecuted for or convicted of offenses committed before turning seventeen. Even if the defense wanted to avoid a legally innocent argument, that does not change the fact that the jury in this case received evidence upon which they were statutorily prohibited from convicting Appellant.Taylor II, 332 S.W.3d at 487 (citation omitted).
Regardless of the merit of this assertion, we conclude that appellant has not established the second Strickland prong; that is, he has not shown a reasonable probability exists that, but for counsel's error, the result would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. As correctly pointed out by appellant, a reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. And we are aware that the ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.
The Court of Criminal Appeals held that the lack of the section 8.07(b) instruction was not egregiously harmful to appellant. See Taylor II, 332 S.W.3d at 493. In support of this holding, the court provided the following analysis:
Taking the record as a whole, we believe that egregious harm did not result from the jury-charge error. The defensive theory was that no sexual abuse occurred at any time. It is unlikely that the jury believed that Appellant sexually assaulted the victim before he turned 17 years old but not after. In this case, the jury either believed Appellant or believed the victim.
. . . .
The evidence showed an eight-year pattern of escalating sexual abuse of J.G. by Appellant. Appellant turned 17 years old midway through the abusive period, meaning that he is subject to prosecution for his conduct beginning on that birthday or March 25, 2002, and evidence of molestation that occurred after that date was introduced at trial. For example, although J.G. described with more detail the instances that occurred during Appellant's juvenile years, she also described abuse that occurred when Appellant was 17, 18, 19, and 20 years old. The State emphasized this in its closing argument.
Accordingly, we conclude that Appellant was not denied a fair and impartial trial and was, therefore, not egregiously harmed.
Id.
We acknowledge that the analysis for determining whether a trial court's error is egregiously harmful is not the same analysis as determining whether a reasonable probability exists that, but for counsel's error, the result would have been different. Nonetheless, the same reasoning given by the Court of Criminal Appeals for determining that appellant did not suffer egregious harm also serves to show in these cases that there is not a reasonable probability that the outcome would have been different had the section 8.07(b) instruction been given. As the Court of Criminal Appeals points out, the jury was faced with the determination of whether it believed J.G. or not. The verdicts inform us that the jury believed J.G. There is no reason why the jury would have believed that appellant sexually abused J.G. when he was a juvenile but did not when he was over 17 years old. The lack of an instruction does not undermine our confidence in the outcome. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
We conclude that appellant has not shown that a reasonable probability exists that, but for his counsel's error, the result would have been different. See id. We hold that appellant has not established his ineffective assistance of counsel claim.
We overrule appellant's third issue in each appeal.
Conclusion
We affirm the judgment of conviction in each appellate cause.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).