In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00100-CR
JOSHUA SAUSEDA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 361st District Court Brazos County, Texas1 Trial Court No. 16-02439-CRF-361, Honorable Steven Lee Smith, Presiding
September 25, 2018
MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
Joshua Sauseda, appellant, appeals his convictions for aggravated sexual assault
of a child and indecency with a child.2 In one issue, he argues that his trial counsel “was
grossly ineffective in a multitude of ways.” The record does not show counsel’s
1Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3
2 See TEX. PENAL CODE ANN. §§ 22.11, 22.021 (West Supp. 2017). explanations for his acts and, consequently, does not show that counsel’s representation
was constitutionally deficient. We affirm.
Background
Because appellant does not challenge the sufficiency of the evidence presented
at trial to support his conviction, we provide only such facts as will assist in an
understanding of the issue he presents on appeal.
Appellant was charged with two offenses: count 1 alleged appellant committed
aggravated sexual assault of a child, “Tasha,” on or about December 1, 2014; count 2
alleged he committed indecency with a child, “Mia,” on or about May 1, 2015.3 Appellant
pleaded not guilty to both counts. Tasha and Mia are sisters. At the time of trial, Tasha
was fifteen and Mia was seventeen.
The evidence showed that, in December of 2014, when Tasha was thirteen years
old, she visited the home of her cousin, “Melanie,” in College Station. Melanie lived with
her mother and three siblings. Appellant, who was in his twenties, was dating Melanie
and also lived with the family. Tasha related that when she was in bed one night,
appellant entered the room where she was sleeping, got into bed with her, and “put his
private part inside [her] private part.” Tasha told her best friend about the assault the next
day and later told her mother.
Mia testified that in the summer of 2015, she went to visit Melanie’s family. After
Mia had gone to bed, appellant came into her room and began touching her. Appellant
3We will use pseudonyms to protect the privacy of the complainants involved. See Linney v. State, 401 S.W.3d 764, 769 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
2 moved his hands up and down Mia’s thighs and then began rubbing her breasts on top
of her bra. He tried to unbutton Mia’s pants but Mia turned away and told him “no.” He
eventually left the room. Mia told a friend about the incident a few days later.
Appellant was subsequently indicted for the two offenses identified above, and the
jury found him guilty of both. The trial court assessed punishment of ninety years’
imprisonment on the first count and twenty years’ imprisonment on the second count, to
run concurrently.
By this appeal, appellant contends that his trial counsel was constitutionally
ineffective because he failed to cross-examine crucial witnesses, allowed the State to
lead witnesses without objection, made a weak closing argument, and performed poorly
during the punishment phase of the trial.
Standard of Review
The United States Constitution guarantees the right to counsel, which
encompasses the right to effective assistance of counsel. U.S. CONST. amend. VI;
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Texas courts apply the two-pronged test set forth in Strickland when determining whether
counsel’s representation was so inadequate as to violate a defendant’s Sixth Amendment
right to counsel. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en
banc). Judicial review of an ineffective assistance of counsel claim must be highly
deferential, and there is a strong presumption that trial counsel’s conduct fell within the
wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To
establish ineffective assistance of counsel, an appellant bears the burden of proving by a
3 preponderance of the evidence that (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) the deficient performance prejudiced the appellant.
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Failure to make the required
showing of either deficient performance or sufficient prejudice is fatal to an ineffectiveness
claim. See id.
The right to effective assistance of counsel ensures “reasonably effective,” but not
“perfect” assistance. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
“Isolated instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for examination.” Id.
(quoting McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992) (en banc)).
Counsel’s performance is judged by “the totality of the representation.” Id.
In order for an appellate court to find that counsel was ineffective, counsel’s
deficiency must be affirmatively demonstrated in the trial record. Lopez, 343 S.W.3d at
142. In this case, appellant did not present his claim of ineffective assistance of counsel
through a motion for new trial or any procedure providing for supplementing the record in
the trial court. “When such direct evidence is not available, we will assume that counsel
had a strategy if any reasonably sound strategic motivation can be imagined.” Id. at 143.
Discussion
Appellant argues that his trial counsel was constitutionally ineffective for four
reasons: (1) failing to cross-examine crucial witnesses, (2) allowing the State to lead
4 witnesses without objection, (3) making a weak closing argument, and (4) performing
poorly during the punishment phase of the trial. We will review each allegation in turn.
Failure to cross-examine crucial witnesses
Appellant asserts that his trial counsel “did not ask a single question” of either of
the two detectives who testified in the case. The first, Detective Loup, testified generally
about being a child abuse investigator and explained how forensic interviews work. He
stated that he did not attend the forensic interviews of Tasha and Mia. He did not testify
as to any facts of the case, except to agree that at the conclusion of the investigation, he
presented the cases to the district attorney’s office. The second, Detective Acklin,
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00100-CR
JOSHUA SAUSEDA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 361st District Court Brazos County, Texas1 Trial Court No. 16-02439-CRF-361, Honorable Steven Lee Smith, Presiding
September 25, 2018
MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
Joshua Sauseda, appellant, appeals his convictions for aggravated sexual assault
of a child and indecency with a child.2 In one issue, he argues that his trial counsel “was
grossly ineffective in a multitude of ways.” The record does not show counsel’s
1Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3
2 See TEX. PENAL CODE ANN. §§ 22.11, 22.021 (West Supp. 2017). explanations for his acts and, consequently, does not show that counsel’s representation
was constitutionally deficient. We affirm.
Background
Because appellant does not challenge the sufficiency of the evidence presented
at trial to support his conviction, we provide only such facts as will assist in an
understanding of the issue he presents on appeal.
Appellant was charged with two offenses: count 1 alleged appellant committed
aggravated sexual assault of a child, “Tasha,” on or about December 1, 2014; count 2
alleged he committed indecency with a child, “Mia,” on or about May 1, 2015.3 Appellant
pleaded not guilty to both counts. Tasha and Mia are sisters. At the time of trial, Tasha
was fifteen and Mia was seventeen.
The evidence showed that, in December of 2014, when Tasha was thirteen years
old, she visited the home of her cousin, “Melanie,” in College Station. Melanie lived with
her mother and three siblings. Appellant, who was in his twenties, was dating Melanie
and also lived with the family. Tasha related that when she was in bed one night,
appellant entered the room where she was sleeping, got into bed with her, and “put his
private part inside [her] private part.” Tasha told her best friend about the assault the next
day and later told her mother.
Mia testified that in the summer of 2015, she went to visit Melanie’s family. After
Mia had gone to bed, appellant came into her room and began touching her. Appellant
3We will use pseudonyms to protect the privacy of the complainants involved. See Linney v. State, 401 S.W.3d 764, 769 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
2 moved his hands up and down Mia’s thighs and then began rubbing her breasts on top
of her bra. He tried to unbutton Mia’s pants but Mia turned away and told him “no.” He
eventually left the room. Mia told a friend about the incident a few days later.
Appellant was subsequently indicted for the two offenses identified above, and the
jury found him guilty of both. The trial court assessed punishment of ninety years’
imprisonment on the first count and twenty years’ imprisonment on the second count, to
run concurrently.
By this appeal, appellant contends that his trial counsel was constitutionally
ineffective because he failed to cross-examine crucial witnesses, allowed the State to
lead witnesses without objection, made a weak closing argument, and performed poorly
during the punishment phase of the trial.
Standard of Review
The United States Constitution guarantees the right to counsel, which
encompasses the right to effective assistance of counsel. U.S. CONST. amend. VI;
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Texas courts apply the two-pronged test set forth in Strickland when determining whether
counsel’s representation was so inadequate as to violate a defendant’s Sixth Amendment
right to counsel. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en
banc). Judicial review of an ineffective assistance of counsel claim must be highly
deferential, and there is a strong presumption that trial counsel’s conduct fell within the
wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To
establish ineffective assistance of counsel, an appellant bears the burden of proving by a
3 preponderance of the evidence that (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) the deficient performance prejudiced the appellant.
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Failure to make the required
showing of either deficient performance or sufficient prejudice is fatal to an ineffectiveness
claim. See id.
The right to effective assistance of counsel ensures “reasonably effective,” but not
“perfect” assistance. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
“Isolated instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for examination.” Id.
(quoting McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992) (en banc)).
Counsel’s performance is judged by “the totality of the representation.” Id.
In order for an appellate court to find that counsel was ineffective, counsel’s
deficiency must be affirmatively demonstrated in the trial record. Lopez, 343 S.W.3d at
142. In this case, appellant did not present his claim of ineffective assistance of counsel
through a motion for new trial or any procedure providing for supplementing the record in
the trial court. “When such direct evidence is not available, we will assume that counsel
had a strategy if any reasonably sound strategic motivation can be imagined.” Id. at 143.
Discussion
Appellant argues that his trial counsel was constitutionally ineffective for four
reasons: (1) failing to cross-examine crucial witnesses, (2) allowing the State to lead
4 witnesses without objection, (3) making a weak closing argument, and (4) performing
poorly during the punishment phase of the trial. We will review each allegation in turn.
Failure to cross-examine crucial witnesses
Appellant asserts that his trial counsel “did not ask a single question” of either of
the two detectives who testified in the case. The first, Detective Loup, testified generally
about being a child abuse investigator and explained how forensic interviews work. He
stated that he did not attend the forensic interviews of Tasha and Mia. He did not testify
as to any facts of the case, except to agree that at the conclusion of the investigation, he
presented the cases to the district attorney’s office. The second, Detective Acklin,
testified that in 2010, she conducted a forensic interview of another child, “Samantha,”
who disclosed that she was sexually abused by appellant when she was thirteen years
old.
Appellant’s trial counsel did not cross-examine Loup or Acklin, and the record is
silent as to his reasoning. We note that Loup’s testimony was somewhat general in nature
and did not touch on the facts of this case. We also observe that the subject of Acklin’s
testimony was the extraneous offense involving Samantha, and Samantha testified
immediately after Acklin. Appellant’s trial counsel cross-examined Samantha and
highlighted differences in what Samantha said at trial and what Acklin testified Samantha
told her in 2010. In the absence of anything in the record regarding counsel’s decision
not to cross-examine these two witnesses, we assume it was due to some strategic
motivation. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).
5 Failure to object to State’s leading questions
Next, appellant maintains that his trial counsel was ineffective for allowing the State
to lead Acklin “through a series of damning questions about an extraneous offense”
involving Samantha. We disagree with appellant’s characterization of the State’s direct
examination of Acklin. Most of Acklin’s testimony about the extraneous offense came in
response to non-leading questions such as: “Did she talk about what [appellant] had
done – what had happened with [appellant]?”, “What did she tell you?”, and “What did
she say?” We further note that Samantha, the victim of the extraneous offense, testified
immediately after Acklin, so evidence about the extraneous offense came in anyway.
While this testimony may have been damning, the manner in which it was elicited was not
improper.
Appellant identifies one leading question (“[T]hat’s primarily because this sort of
thing happens behind closed doors with really just the perpetrator and the victim present,
right?”) as an example of the alleged improper questioning of Acklin. The record is silent
as to why defense counsel did not object to this, or any other, question. When the record
is silent concerning why defense counsel did not object to leading questions from the
State, the appellant fails to rebut the presumption that this conduct constitutes reasonable
trial strategy. See Young v. State, 10 S.W.3d 705, 713 (Tex. App.—Texarkana 1999, pet.
ref’d). We conclude that appellant has not met his burden to establish that his trial counsel
rendered ineffective assistance by failing to object to the State’s questioning of Acklin.
6 Closing argument
In his third critique, appellant argues that trial counsel made a weak closing
argument. Appellant highlights trial counsel’s final statement, “I submit to you that there’s
some questions in there and some of them raised some reasonable doubt,” branding it
as the “weakest closing argument concluding sentence.”
The record reflects that trial counsel’s closing argument emphasized to the jury
that the burden was on the State to prove its case, pointed out discrepancies in the
testimony that Tasha, Mia, and Samantha gave in court compared to what they said at
their forensic interviews, and reminded the jury of the instruction regarding the extraneous
offense evidence.
Deference to trial counsel’s decisions in the context of closing argument is
particularly important given the broad range of legitimate defense strategy at that stage.
Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). We conclude
that a reasonable trial strategy could justify trial counsel’s closing argument; therefore,
appellant has not overcome the presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance. See Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999).
Punishment phase
Appellant next contends that his trial counsel was ineffective because he did not
ask questions of two of the State’s witnesses, did not call witnesses himself, and failed to
point to any “redeeming incident” or “remotely positive quality” of the appellant during the
punishment phase of trial.
7 The record does not divulge trial counsel’s reasons for forgoing cross-examination
of these two witnesses. Appellant has presented no argument to rebut the presumption
that the decision not to cross-examine them was sound trial strategy. As for trial counsel’s
failure to call witnesses on behalf of appellant, there must be a showing that potential
defense witnesses were available and that their testimony would have benefited appellant
in order for the failure to call them to constitute ineffective assistance. See Rodriguez v.
State, 74 S.W.3d 563, 566 (Tex. App.—Amarillo 2002, pet. ref’d) (citing Wilkerson v.
State, 726 S.W.2d 542, 550-51 (Tex. Crim. App. 1986)). No such showing has been
made here. The record does not show what, if any, mitigating evidence was available.
We will not find trial counsel ineffective under such circumstances.
Conclusion
Having overruled appellant’s sole issue on appeal, we affirm the judgment of the
trial court.
Judy C. Parker Justice
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