MEMORANDUM OPINION No. 04-10-00908-CR
Juan A. MORENO, Appellant
v.
The STATE of Texas, Appellee
From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR8626D Honorable Ron Rangel, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice
Delivered and Filed: May 23, 2012
AFFIRMED
Juan A. Moreno was convicted of trafficking of persons, aggravated sexual assault,
aggravated kidnapping, and compelling prostitution. He appeals the judgments of the trial court,
arguing his attorney rendered ineffective assistance. We affirm the judgments.
The complainant, J.C., testified that Moreno and another man kidnapped her and kept her
captive for approximately two weeks. During most of her captivity, she was tied to a bed while
Moreno and the other man sexually assaulted her numerous times. Moreno allowed other men to 04-10-00908-CR
sexually assault J.C. in exchange for money. J.C. eventually escaped, but did not report the
crimes until she was detained on a warrant from the juvenile court arising from an unrelated
charge.
Moreno contends his trial counsel rendered ineffective assistance by failing to challenge
testimony from Dr. Nancy Kellogg. In particular, Moreno contends his counsel was ineffective
because he failed to “hold the State to its burden . . . of qualifying Dr. Kellogg as an expert, and
. . . by not objecting to [Dr.] Kellogg’s testimony from the outset, and then allowing her to testify
with the air of an expert on several areas, none of which were properly subject to her testimony.”
He also argues counsel should have objected because the State failed to demonstrate Dr. Kellogg
had sufficient information about the complainant to offer reliable and relevant testimony, and
contends Dr. Kellogg’s testimony was too general to be of any aid to the jury. Moreno asserts
that “[n]o reasonably competent attorney would have allowed such testimony to go forward
without, at the minimum, trying to prevent it from the outset, and if that did not work, objecting
throughout the testimony.”
To establish ineffective assistance of counsel, a defendant must show his trial counsel’s
performance was deficient and the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, the defendant
must prove by a preponderance of the evidence that counsel’s performance fell below an
objective standard of reasonableness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Our review of defense
counsel’s representation is “highly deferential” and we presume “counsel’s actions fell within the
wide range of reasonable and professional assistance.” Bone, 77 S.W.3d at 833. To overcome
this presumption, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and
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the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at
813. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003). When the record contains no direct evidence of counsel’s reasons for the challenged
conduct, we “will assume that counsel had a strategy if any reasonably sound strategic
motivation can be imagined.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). We
“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), cert. denied, 537 U.S. 1195 (2003).
To prevail on a claim based on failure to object to the admission of evidence, a defendant
must demonstrate that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.
Crim. App. 2002), cert. denied, 538 U.S. 998 (2003). Counsel does not render ineffective
assistance by failing to object to admissible evidence. See Lee v. State, 29 S.W.3d 570, 577–78
(Tex. App.—Dallas 2000, no pet.); Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston
[1st Dist.] 1986, pet. ref’d).
A defendant claiming ineffective assistance of counsel must also establish prejudice by
showing “a reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is one sufficient to
undermine confidence in the outcome.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002). Failure to prove either deficient performance or prejudice is fatal to any complaint of
ineffective assistance. Strickland, 466 U.S. at 700.
Dr. Kellogg testified before the jury about her qualifications. The testimony included her
undergraduate and medical school training, certification in child abuse pediatrics, publication of
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numerous articles in the area of child sexual abuse, and her examination of over 9,000 children
during her work as a physician in treating children in connection with reports of sexual abuse.
Dr. Kellogg has provided testimony as an expert in the area of child sexual abuse in several
cases. See, e.g. Reyes v. State, 274 S.W.3d 724, 730 (Tex. App.—San Antonio 2008, pet. ref’d)
(holding Dr. Kellogg’s testimony about behavioral characteristics common among abused
children was permissible under rule 702 of Texas Rules of Evidence); see also Hiatt v. State, 319
S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref’d) (noting Dr. Kellogg testified child
victim’s mannerisms and history were consistent with sexual abuse). Nothing in the record
supports Moreno’s contention that his trial counsel’s performance was deficient as it relates to
Dr. Kellogg’s qualifications to testify as an expert.
Moreno also complains that Dr. Kellogg offered testimony about the victim without
having sufficient information about her to provide reliable and relevant evidence, and that she
testified outside her areas of expertise. Dr. Kellogg’s testimony centered on the dynamics of
victim outcries, the average length of time between the purported abuse and the outcry, the
various ways victims react to abuse, and how the details of the abuse are reported. The only
testimony directly about the victim was when Dr. Kellogg was asked whether J.C.’s abuser could
be identified through the presence of a sexually transmitted disease in the victim. Dr. Kellogg
testified it would not be possible to do so. Thus, the only testimony concerning the victim did
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MEMORANDUM OPINION No. 04-10-00908-CR
Juan A. MORENO, Appellant
v.
The STATE of Texas, Appellee
From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR8626D Honorable Ron Rangel, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice
Delivered and Filed: May 23, 2012
AFFIRMED
Juan A. Moreno was convicted of trafficking of persons, aggravated sexual assault,
aggravated kidnapping, and compelling prostitution. He appeals the judgments of the trial court,
arguing his attorney rendered ineffective assistance. We affirm the judgments.
The complainant, J.C., testified that Moreno and another man kidnapped her and kept her
captive for approximately two weeks. During most of her captivity, she was tied to a bed while
Moreno and the other man sexually assaulted her numerous times. Moreno allowed other men to 04-10-00908-CR
sexually assault J.C. in exchange for money. J.C. eventually escaped, but did not report the
crimes until she was detained on a warrant from the juvenile court arising from an unrelated
charge.
Moreno contends his trial counsel rendered ineffective assistance by failing to challenge
testimony from Dr. Nancy Kellogg. In particular, Moreno contends his counsel was ineffective
because he failed to “hold the State to its burden . . . of qualifying Dr. Kellogg as an expert, and
. . . by not objecting to [Dr.] Kellogg’s testimony from the outset, and then allowing her to testify
with the air of an expert on several areas, none of which were properly subject to her testimony.”
He also argues counsel should have objected because the State failed to demonstrate Dr. Kellogg
had sufficient information about the complainant to offer reliable and relevant testimony, and
contends Dr. Kellogg’s testimony was too general to be of any aid to the jury. Moreno asserts
that “[n]o reasonably competent attorney would have allowed such testimony to go forward
without, at the minimum, trying to prevent it from the outset, and if that did not work, objecting
throughout the testimony.”
To establish ineffective assistance of counsel, a defendant must show his trial counsel’s
performance was deficient and the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, the defendant
must prove by a preponderance of the evidence that counsel’s performance fell below an
objective standard of reasonableness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Our review of defense
counsel’s representation is “highly deferential” and we presume “counsel’s actions fell within the
wide range of reasonable and professional assistance.” Bone, 77 S.W.3d at 833. To overcome
this presumption, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and
-2- 04-10-00908-CR
the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at
813. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003). When the record contains no direct evidence of counsel’s reasons for the challenged
conduct, we “will assume that counsel had a strategy if any reasonably sound strategic
motivation can be imagined.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). We
“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), cert. denied, 537 U.S. 1195 (2003).
To prevail on a claim based on failure to object to the admission of evidence, a defendant
must demonstrate that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.
Crim. App. 2002), cert. denied, 538 U.S. 998 (2003). Counsel does not render ineffective
assistance by failing to object to admissible evidence. See Lee v. State, 29 S.W.3d 570, 577–78
(Tex. App.—Dallas 2000, no pet.); Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston
[1st Dist.] 1986, pet. ref’d).
A defendant claiming ineffective assistance of counsel must also establish prejudice by
showing “a reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is one sufficient to
undermine confidence in the outcome.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002). Failure to prove either deficient performance or prejudice is fatal to any complaint of
ineffective assistance. Strickland, 466 U.S. at 700.
Dr. Kellogg testified before the jury about her qualifications. The testimony included her
undergraduate and medical school training, certification in child abuse pediatrics, publication of
-3- 04-10-00908-CR
numerous articles in the area of child sexual abuse, and her examination of over 9,000 children
during her work as a physician in treating children in connection with reports of sexual abuse.
Dr. Kellogg has provided testimony as an expert in the area of child sexual abuse in several
cases. See, e.g. Reyes v. State, 274 S.W.3d 724, 730 (Tex. App.—San Antonio 2008, pet. ref’d)
(holding Dr. Kellogg’s testimony about behavioral characteristics common among abused
children was permissible under rule 702 of Texas Rules of Evidence); see also Hiatt v. State, 319
S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref’d) (noting Dr. Kellogg testified child
victim’s mannerisms and history were consistent with sexual abuse). Nothing in the record
supports Moreno’s contention that his trial counsel’s performance was deficient as it relates to
Dr. Kellogg’s qualifications to testify as an expert.
Moreno also complains that Dr. Kellogg offered testimony about the victim without
having sufficient information about her to provide reliable and relevant evidence, and that she
testified outside her areas of expertise. Dr. Kellogg’s testimony centered on the dynamics of
victim outcries, the average length of time between the purported abuse and the outcry, the
various ways victims react to abuse, and how the details of the abuse are reported. The only
testimony directly about the victim was when Dr. Kellogg was asked whether J.C.’s abuser could
be identified through the presence of a sexually transmitted disease in the victim. Dr. Kellogg
testified it would not be possible to do so. Thus, the only testimony concerning the victim did
not appear to implicate Moreno, and the remainder of the testimony was of a general nature and
within Dr. Kellogg’s area of expertise.
Moreno complains the testimony about the reaction of sexual abuse victims and their
manner of outcries was too general to aid the jury. However, the Court of Criminal Appeals has
-4- 04-10-00908-CR
held that a trial court has great discretion in determining whether a witness will assist the jury as
an expert:
If the witness has some special knowledge or additional insight into the field that would be helpful, then the expert can assist the trier of fact to understand the evidence or to determine a fact in issue. An expert may add precision and depth to the ability of the trier of fact to reach conclusions about subjects which lie well within common experience.
Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006) (footnotes and internal quotations
omitted). The trial court certainly could have concluded Dr. Kellogg’s testimony about delayed
outcries, how victims respond to sexual abuse, and how the abuse is reported was the “special
knowledge or additional insight” that could be helpful to the jury. We cannot say the trial court
would have abused its discretion by allowing Dr. Kellogg’s testimony had trial counsel objected.
Accordingly Moreno has failed to prove by a preponderance of the evidence his trial counsel
rendered ineffective assistance by failing to object to her testimony.
The judgments of the trial court are affirmed.
Steven C. Hilbig, Justice
DO NOT PUBLISH
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