No. 14-05-01137-CR.
Decided: May 8, 2007. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).
On Appeal from the 122nd District Court Galveston County, Texas. Trial Court Cause No. 03CR0733. Affirmed and Memorandum Opinion filed May 8, 2007.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
KEM THOMPSON FROST, Justice.
Challenging his conviction for aggravated sexual assault of a child, appellant Russell Kevin Thompson contends the trial court violated his constitutional right to present a defense by refusing to admit evidence allegedly showing that the complainant's uncle had sexually abused her. Appellant also asserts he was denied effective assistance of counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with aggravated sexual assault of a child younger than fourteen years of age. He pleaded "not guilty." In the jury trial that followed, the State presented as its first witness the female child victim, M.Q., whose maternal grandmother, Mary Thompson, is married to appellant. M.Q. was nine years old at the time of the charged offense and twelve years old at the time of trial. She testified that appellant sexually assaulted her on two specific occasions. According to M.Q., both incidents took place in the apartment M.Q.'s grandmother shared with appellant. Describing the first incident, M.Q. testified that in December 2001, she and her younger brother went to the apartment to spend the night. That evening, M.Q. went to sleep on the living room couch, only to be awakened some time later by appellant removing her shorts and underwear. M.Q. testified that after appellant removed her clothing, he spread her legs and put his mouth on the lower part of her private area. M.Q. described the second incident as taking place around July 4, 2002. On that occasion, she was staying with her grandmother and appellant, and she again was sleeping on the couch in the living room. According to M.Q., appellant woke her up by touching her arm or shoulder and then touched her bottom below her waist while exposing his penis. After the State rested its case and before the defense presented any witnesses, the trial court held a hearing outside the presence of the jury to consider the propriety of admitting evidence allegedly showing that M.Q.'s uncle had sexually abused her prior to December 2001. The defense urged the trial court to admit this testimony; however, the trial court denied appellant's request to present to the jury any evidence of this alleged previous incident. Thereafter, in presenting his case, appellant called only one witness, his wife. The jury found appellant guilty of the charged offense and assessed punishment at eighteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. II. ISSUES AND ANALYSIS
Appellant challenges his conviction, asserting the trial court denied him the right to present a defense under the "due process clause of the Sixth Amendment of the United States Constitution." Additionally, appellant complains that he received ineffective assistance of counsel based on his trial counsel's alleged failure to obtain an expert to assist in the cross-examination of an adverse witness and his counsel's alleged failure to investigate and use an expert to present a defense. A. Did appellant preserve error as to his first issue?
In his first issue, appellant contends the trial court's exclusion of evidence of an alleged sexual offense against M.Q. by her uncle constituted a denial of his right to present a defense under the "due process clause of the Sixth Amendment of the United States Constitution." Although the exact nature of the alleged constitutional violation is not clear, appellant appears to be asserting that, by refusing to admit this evidence regarding alleged prior sexual abuse by M.Q.'s uncle, the trial court violated appellant's right to present a defense based on some provision of the United States Constitution. In the trial court, appellant asserted that this evidence was admissible under Texas Rule of Evidence 412(b) as relating to the motive or bias of M.Q. See TEX. R. EVID. 412(b). However, at no time in the trial court did appellant assert that the trial court's refusal to admit this evidence violated his constitutional right to present a defense. In fact, appellant did not assert any constitutional violation in the trial court. Therefore, appellant has failed to preserve error as to his first issue. See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005) (holding appellant did not preserve error as to argument that exclusion of evidence violated Sixth Amendment because appellant did not refer to the constitution in the trial court and did not put the trial court on notice that he was alleging a constitutional violation); Eaves v. State, 141 S.W.3d 686, 690B91 (Tex.App.-Texarkana 2004, pet. ref'd) (holding appellant failed to preserve error as to trial court's alleged violation of Sixth Amendment by refusal to admit evidence that child sexual-assault complainant previously had been sexually assaulted, given that appellant did not voice this argument in the trial court). Accordingly, we overrule appellant's first issue. B. Was appellant denied effective assistance of counsel?
In his second issue, appellant contends that his trial counsel was ineffective in failing to investigate the necessity of obtaining an expert to assist in trial preparation and presentation of appellant's defense and in failing to use such an expert. In his third issue, appellant argues that his trial counsel was ineffective because he failed to obtain an expert to assist in the cross-examination of adverse witnesses such as M.Q. and M.Q.'s mother. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, ' 10; TEX. CODE CRIM. PROC. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy. See Andrews, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005). On a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). As to trial counsel's alleged failure to investigate the necessity of obtaining an expert to assist in trial preparation and presentation of appellant's defense, there is no evidence in our record that appellant's trial counsel failed to conduct such an investigation. Therefore, appellant has failed to carry his burden of proving ineffective assistance of counsel by a preponderance of the evidence. Furthermore, as to the alleged ineffectiveness of appellant's trial counsel in failing to investigate the need for an expert and in failing to use an expert witness, our record does not contain any explanation from counsel as to his trial strategy. When, as in this case, the record is silent as to trial counsel's strategy, an appellate court may not speculate about why counsel acted as he did. See Toney v. State, 3 S.W.3d 199, 210 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). In the absence of such testimony, it is difficult to meaningfully address appellant's claims. See Davis v. State, 930 S.W.2d 765, 769 (Tex.App. — Houston [1st Dist.] 1996, pet. ref'd). We can only conclude appellant has failed to carry his burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Bone, 77 S.W.3d at 830 (refusing to reverse on appellant's claim of ineffective assistance of counsel in the absence of evidence explaining counsel's decisions); Thompson, 9 S.W.3d at 813 (stating that unfounded allegations will not support a claim of ineffective assistance of counsel). Moreover, the record does not show that the alleged conduct of appellant's trial counsel was so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. Furthermore, the record does not demonstrate what such an investigation would have revealed or how such an expert would have aided counsel's cross-examination of the State's witnesses, his trial preparation, or his presentation of appellant's defense. Therefore, appellant has not shown that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's alleged ineffectiveness. Finally, the cases on which appellant relies are not on point. See Ex parte Briggs, 187 S.W.3d 458, 465B70 (Tex.Crim.App. 2005) (concluding appellant's trial counsel did not have a strategic motive for failing to hire an expert based on testimony of defendant's trial counsel in habeas proceeding); Wright v. State, No. 01-05-00597-CR, 01-05-00599-CR, CS.W.3dC, C, 2006 WL 2076148, at *3B8 (Tex.App.-Houston [1st Dist.] Feb. 27, 2006, pet. ref'd) (concluding appellant's trial counsel did not have a strategic motive for failing to hire an expert based on testimony of appellant's trial counsel at hearing on motion for new trial). Accordingly, we overrule appellant's second and third issues. Having overruled all of appellant's issues, we affirm the trial court's judgment. Judgment rendered and Memorandum Opinion filed May 8, 2007.