NUMBER 13-13-00014-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 130th District Court of Matagorda County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion by Justice Perkes Appellant Juan Garcia appeals his conviction for the offense of aggravated sexual
assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw
through 2013 3d C.S.). A jury found appellant guilty and assessed punishment at ninety-
nine years’ confinement in the Texas Department of Corrections, Institutional Division.
By four issues, which we construe as one, appellant contends that he was denied effective assistance of counsel. Specifically, appellant asserts that his counsel failed to: (1)
conduct a reasonable investigation and call witnesses during the trial and punishment
phases; (2) consult with an expert witness or review scientific literature concerning false
allegations of sexual abuse; (3) effectively cross-examine the State’s witnesses; and (4)
object or seek a continuance when the State called an undesignated witness during the
punishment phase. We affirm.
I. BACKGROUND
Appellant’s stepdaughter, G.D., alleged that appellant sexually assaulted her. 1
During the guilt/innocence phase of the trial, G.D. testified that appellant committed
numerous inappropriate acts towards her, beginning when she was eight years old. The
inappropriate acts included: suggesting she try on a pair of women’s underwear in a
store while her mother was in another changing room; masturbating at the foot of her bed;
lying nude in her bed next to her while she pretended to sleep; touching her
inappropriately; and penetrating her vagina with his fingers.2 Appellant’s counsel cross-
examined the State’s witnesses, but did not cross-examine G.D. Appellant did not testify
and did not call any defense witnesses during this phase of the trial.
During the punishment phase, the State called B.R., A.L., T.S., and R.T. to testify.
These women recounted an incident that occurred with appellant, approximately six years
before appellant began molesting G.D. According to all four witnesses, they were
1 G.D. was an adult at the time of trial. She testified that the sexual abuse happened approximately
ten years earlier.
2 The State presented four witnesses during the guilt/innocence phase of the trial: G.D., her father, her mother, and Sergeant Charlotte Brown. 2 playing outside when appellant got their attention by knocking on a window. Through
the window, they saw that appellant was naked and masturbating. They each testified
that appellant pleaded guilty to indecency and that he received deferred adjudication. In
addition, A.C., a childhood friend of one of appellant’s daughters, testified that appellant
touched her “in her private parts” at a sleepover when she was eleven years old. A.C.
also testified that on one occasion, she saw appellant standing naked and masturbating
at a window while she was playing outside. Defense counsel did not cross-examine the
State’s witnesses and did not present any witnesses during the punishment phase of trial.
Appellant filed a motion for new trial. During the hearing on appellant’s motion,
five of appellant’s daughters stated that, had they testified at their father’s trial, they
generally would have had favorable things to say about appellant. They also testified
that appellant’s defense counsel did not interview them prior to trial.
Defense counsel testified at the hearing that his trial strategy was to show that
G.D.’s delayed accusations of sexual abuse were an attempt by G.D.’s mother to gain an
advantage over appellant in their divorce proceedings. Defense counsel stated that he
did not need to call any witnesses because he was able to pursue this strategy through
cross-examination. He also said that he did not need an expert witness because the
defensive theory was relatively simple. When questioned about his strategy regarding
punishment, he explained that he did not question or present any witnesses because it
would have made “a bad situation worse.” One of his investigators informed him that
appellant’s daughters had played with the girls involved in appellant’s indecency case.
3 Defense counsel feared that using appellant’s daughters as witnesses would have
opened the door to damaging cross-examination about the incident.
Appellant introduced into evidence at the new trial hearing, an affidavit from
Jerome Brown, Ph.D., in which he attested that CPS records and therapy records of G.D.
could have been reviewed to determine whether proper methods were utilized; that G.D.’s
therapy attendance could have suggested low motivation in treatment, which would be
inconsistent with having been sexually abused; and that, based upon the divorce of
appellant and his wife, there was an increased probability of false allegations. Brown
averred that an expert could have helped develop a line of questioning, and suggested
several books that could have been used to prepare defense counsel. The trial court
denied appellant’s motion for new trial.
II. STANDARD OF REVIEW AND APPLICABLE LAW
To prevail on an ineffective assistance of counsel claim, the defendant must show:
(1) counsel’s representation fell below an objective standard of reasonableness; and
(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);
Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Our
review of the counsel’s representation is highly deferential; we will find ineffective
assistance only if appellant rebuts the strong presumption that his counsel’s conduct fell
within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689;
Lopez, 343 S.W.3d at 142; Jaynes, 216 S.W.3d at 851. The record must contain
evidence of the counsel’s reasoning, or lack thereof, to rebut the presumption. Moreno
4 v. State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref’d). We review the
totality of representation rather than isolated instances in determining whether trial
counsel was ineffective. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006); Lopez, 343 S.W.3d at 143.
When, as here, ineffective assistance was first urged in a motion for new trial, we
review the two Strickland prongs through the prism of the abuse of discretion standard.
See Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—Corpus Christi 2011, pet. denied);
State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998, pet. ref’d). A trial court
abuses its discretion when no reasonable review of the record could support the trial
court’s ruling. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).
III. DISCUSSION
A. Case Investigation
Counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691.
To establish an ineffective assistance claim for failure to investigate, a defendant must
allege with specificity what the investigation would have revealed and how it would have
changed the outcome of the trial. United States v. Green, 882 F.2d 999, 1003 (5th Cir.
1989). Appellant asserts that defense counsel’s performance was inadequate because
he allegedly failed to speak with appellant’s daughters. Appellant argues that because
of his failure, defense counsel did not know that the daughters could have provided
testimony that G.D. fabricated her allegations.
5 Although appellant argues that an “investigation could result in a defense of
fabrication, retaliation, or allegations resulting from parental alienation,” the record does
not support these claims. Defense counsel’s investigator informed him that appellant’s
daughters had played with the girls involved in appellant’s indecency case. In addition,
during the hearing on appellant’s motion for new trial, appellant’s daughters all testified
that G.D. did not have a good relationship with appellant and that appellant was a good
father. However, none of the daughters testified about appellant’s sexual abuse charges
or that G.D. was untruthful regarding her allegations. Although appellant’s daughters
allege there is animosity among appellant, G.D., and G.D.’s mother specifically relating
to appellant’s divorce, such allegations do not impeach G.D.’s veracity. Appellant fails
to show what further investigation would have revealed and how it would have helped
him. See id.
B. Defense Witnesses
Appellant argues that his daughters and ex-spouse should have been called as
character witnesses during the punishment phase. Appellant claims that the witnesses
would have testified regarding mitigating factors for the jury to consider and that there is
a reasonable probability that the jury’s assessment of punishment would have been less
severe had the witnesses testified.
Defense counsel testified that calling appellant’s family members would have
invited harmful cross-examination. Anticipating that the State would use the family
members to highlight the 1995 indecency case, defense counsel made a legitimate trial
strategy decision to not put the daughters on the stand. See Ex parte McFarland, 163
6 S.W.3d 743, 757 (Tex. Crim. App. 2005) (explaining that even though possible witness
testimony may have been beneficial to defense, it was a legitimate strategic decision not
to call witness because State would have cross-examined witness about prior robberies
committed by defendant); Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref'd) (setting out that counsel can only make a reasonable decision to
forego presentation of mitigating evidence after evaluating available testimony and
determining it would not be helpful); see also Thomas v. State, No. 06-01-00021-CR,
2002 WL 171598, at *8 (Tex. App.—Texarkana, Feb. 5, 2002, no pet.) (not designated
for publication) (“It is a legitimate strategy for counsel not to put even favorable witnesses
on the stand where there is a risk of opening the door to unfavorable testimony on cross-
examination.”). Accordingly, because placing the daughters on the stand could have
potentially opened the door to testimony that could harm appellant, we hold defense
counsel’s conduct fell within the wide range of reasonable professional assistance. See
Strickland, 466 U.S. at 699–700.
Appellant relies on Milburn, 15 S.W.3d at 270, for the proposition that the failure to
put on available witnesses constitutes ineffective assistance of counsel. Appellant’s
reading of Milburn is unpersuasive. In Milburn, trial counsel failed to investigate,
evaluate, or submit any character testimony in spite of the fact at least twenty people
were available to testify on defendant’s behalf. Id. at 269–70. Milburn emphasizes the
importance of presenting helpful witnesses and evidence, but also recognizes that
defense counsel may “forego presentation of mitigating evidence after evaluating
available testimony and determining that it would not be helpful.” Id. at 270.
7 C. Expert Witness
Appellant argues that trial counsel did not have an expert witness strategy and that
an expert was necessary to counter Sergeant Charlotte Brown’s testimony that G.D. had
not been manipulated into making an accusation against appellant.3 An error in trial
strategy will only be considered inadequate representation if counsel’s actions are without
a plausible basis. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).
During the motion for new trial hearing, appellant asked defense counsel about retaining
an expert witnesses:
[Appellant Counsel]: Okay. What was your trial strategy not getting an expert witness in this case, an expert witness who is trained in child sex abuse cases, a psychologist, who could—in fact, a mental health professional with special expertise in treatment and evaluation of sex abuse allegations? What was your trial strategy in not getting an expert to look at the therapy records?
[Defense Counsel]: I did not have a trial strategy in regard to that. As I said, my core strategy was the fact that G.D. loathed [appellant] for many reasons.
From defense counsel’s answer, appellant reasons that defense counsel had no trial
strategy regarding an expert witness. Appellant claims Dr. Brown could have testified
regarding a pattern of behavior called “sex abuse in divorce syndrome.” Further,
appellant asserts that expert review of the complainant’s therapy records could have
indicated that complainant’s behavior was inconsistent with having been sexually abused.
During the hearing, defense counsel explained his trial strategy, as follows:
My trial strategy was that these accusations which were over 12 years old only came to light based upon a knock-down drag-out divorce
3 Sergeant Brown investigated G.D.’s allegations against appellant. 8 between my client and his wife, and that's when the first real outcry emanated.
....
I think the fact that people often make allegations of sexual abuse during a divorce is certainly something of common knowledge. I don't think you need an expert to tell that to a jury or anybody else.
Defense counsel stated he executed his trial strategy effectively through cross-
examination of the State’s witnesses.
The record reflects that defense counsel’s strategy, like Dr. Brown’s proposed
strategy, was to characterize the sexual abuse accusations as an attempt by appellant’s
wife to gain an advantage over appellant in the divorce proceedings. Defense counsel
concluded, however, that he did not need an expert witness to advance this argument.
Though defense counsel admitted that an expert witness may have helped him develop
a line of questioning for the complainant to show inconsistencies in her behavior, a
defendant's constitutional right to counsel does not mean errorless counsel. See Howell
v. State, 563 S.W.2d 933 (Tex. Crim. App. 1978). This reasoning, supplemented by the
strong presumption that a counsel’s actions fall within the wide range of reasonable
professional assistance, leads us to conclude that his actions were both plausible and
within the range of acceptable professional assistance. See State v. Morales, 253
S.W.3d 686, 698 (Tex. Crim. App. 2008) (quoting Strickland, 466 U.S. at 687, 689 (1984)).
Appellant relies on Ex parte Briggs, Wright v. State, and Ex parte Ard to support
his argument that the failure to present expert testimony constitutes ineffective assistance
of counsel. See Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005); Wright
v. State, 223 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Ex parte Ard,
9 No. AP-75704, 2009 WL 618982 at *2, (Tex. Crim. App. 2009) (mem. op., not designated
for publication).4 Each case is factually distinguishable. Unlike trial counsel in Briggs,
Wright, and Ard, defense counsel explained his legitimate strategic reasons for his actions
that were not based on timing or financial constraints. In Briggs, the decision not to
produce expert witnesses was based on a financial decision, not a strategic one. See
Briggs, 187 S.W.3d at 457. In Wright, trial counsel did not hire an expert because (1) he
was told that any expert he hired would not be able to interview the complainant, and (2)
by the time he had received the investigator’s notes he did not have time to contact an
expert. See Wright, 223 S.W.3d at 43. In Ard, the Texas Court of Criminal Appeals
based its reversal on a difference between the expert’s testimony at trial and at the writ
hearing that could not be explained or justified by trial strategy. See Ard, 2009 WL
618982, at *5.
In sum, we conclude that trial counsel’s decision not to present expert testimony
does not constitute ineffective assistance.
D. Scientific Literature
Appellant also argues that trial counsel’s performance was deficient because he
did not fully investigate existing scientific literature. During the motion for new trial,
appellant questioned defense counsel on his familiarity with scientific evidence in sexual
abuse cases as follows:
[Appellant Counsel]: Okay. Have you ever used an expert in a child sexual abuse case or aggravated sex assault case?
4 Unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court. TEX. R. APP. P. 77.3. 10 [Defense Counsel]: Yes, sir, I believe I have.
[Appellant Counsel]: Have you read any books on child abuse in preparing for cross-examination of complaining witnesses?
[Defense Counsel]: Well, I've certainly read and kept up with case law, and I have read some treatises.
Contrary to appellant’s assertion, the record does not support the argument that
defense counsel failed to research scientific literature, that defense counsel was unaware
of the literature, or that defense counsel’s representation was constitutionally deficient
because he failed to review any scientific literature concerning false allegations.
Defense counsel’s familiarity with scientific literature falls within the wide range of
reasonable professional assistance.
E. Cross-Examination of the State’s Witnesses
Appellant argues his defense counsel should have cross-examined: (1) Sergeant
Brown about a 2003 visit by G.D. and her father to the sheriff’s office; (2) G.D.’s father
about potential past abuse; (3) Captain Susan Maxwell 5 of the Matagorda County
Sheriff’s Department about a February 14, 2003 sheriff’s report and whether or not she
visited G.D.’s school; (4) G.D.’s mother about CPS allegations of abuse made on a regular
basis; and (5) G.D. regarding her inconsistent statements.
Again, appellant has failed to rebut the presumption that his counsel’s cross-
examination fell within the wide range of reasonable professional assistance. Resendiz
v. State, 112 S.W.3d 541, 548 (Tex. Crim. App. 2003) (“noting that a suggestion that
cross-examination should have been conducted in another manner does not rebut
5 Captain Maxwell did not testify in this case. 11 presumption that counsel's conduct fell within wide range of reasonable professional
assistance”). It is frequently a sound trial strategy not to attack a sympathetic eyewitness
without very strong impeachment. Ex parte McFarland, 163 S.W.3d at 756.
Cross-examination is an art, not a science, and it cannot be adequately judged in
hindsight. Ex parte McFarland, 163 S.W.3d at 756. While appellant has suggested that
certain points in cross-examination could have been done differently, “isolated instances
in the record reflecting errors of commission or omission do not cause counsel to become
ineffective, nor can ineffective assistance of counsel be established by isolating or
separating out one portion of the trial counsel’s performance for examination.” Ex parte
Welborn, 785 S.W.2d 391, 293 (Tex. Crim. App. 1990) (en banc); see Lopez, 343 S.W.3d
at 143 (holding that an appellate court looks to totality of representation). We hold that
defense counsel’s cross-examination constituted reasonable professional assistance.
F. Objecting to Punishment Phase Witness and Filing a Motion for Continuance
Appellant complains that, during the punishment phase, defense counsel failed to
object to the State’s undesignated witness, A.C., and failed to move for a continuance to
investigate A.C. in light of anticipated testimony. Appellant relies on defense counsel’s
admission during the hearing that, in hindsight, it may have been a mistake to not object
or to ask for a continuance and that A.C.’s testimony may have contributed to appellant’s
sentence.
Despite defense counsel’s candid reflection, we assess counsel’s performance
without the benefit of hindsight. See Strickland, 466 U.S. at 669 (explaining that a fair
assessment of attorney performance requires that every effort be made to eliminate
12 distorting effects of hindsight, to reconstruct circumstances of counsel's challenged
conduct, and to evaluate conduct from counsel's perspective at the time of trial); see also
Ex parte Welborn, 785 S.W.2d at 393. When claiming ineffective assistance for failing
to object, a party must demonstrate that if trial counsel had objected, the trial judge would
have committed error in refusing to sustain the objection. Vaughn v. State, 931 S.W.2d
564, 566 (Tex. Crim. App. 1996) (en banc). In Hollowell v. State, the Texas Court of
Criminal Appeals held that evidence willfully withheld from disclosure under a discovery
order should be excluded from evidence. Hollowell v. State, 571 S.W.2d 179, 180 (Tex.
Crim. App. 1978). The sanction of exclusion, however, should not be imposed absent
bad faith or willfulness on the part of the prosecution. Peña v. State, 864 S.W.2d 147,
149 (Tex. App.—Waco 1993, no pet.).
The record is devoid of any evidence that would show that the State willfully or
knowingly failed to timely disclose A.C.’s testimony. Appellant has not provided any
evidence that the State knew of A.C. before she submitted her statement to police or that
the State deliberately withheld the disclosure of A.C. as a witness. Therefore, we are
unable to conclude that the trial court would have abused its discretion by overruling an
objection to A.C.’s testimony. See Vaughn, 931 S.W.2d at 566 (requiring proof of
prosecutorial bad faith in withholding a witness’s information).
When viewed in light of Strickland, appellant’s claim that he was denied effective
assistance of counsel based on counsel’s failure to ask for a continuance to investigate
A.C. also fails. See Strickland, 466 U.S. at 691. Even assuming the failure was
deficient performance, appellant fails to put forth any evidence that defense counsel’s
13 decision not to ask for a continuance prejudiced or harmed his defense. See id. (holding
that to prevail on ineffective assistance of counsel claim, appellant must show deficient
performance prejudiced defense). As previously discussed, appellant must specifically
show what further investigation would uncover and how it would help the defense. See
Green, 882 F.2d 999, 1003. Appellant has done neither. The record fails to show how
defense counsel’s failure to request a continuance during punishment prejudiced
appellant’s defense. See Strickland, 466 U.S. at 691.
G. Summary
Appellant has failed to show that his attorney’s performance fell below an objective
standard of reasonableness or that the outcome of trial would have been different but for
his trial counsel’s alleged mistakes. See id., 466 U.S. at 687–691. Because the record
supports the trial court’s ruling, we find that the trial court did not abuse its discretion in
denying appellant’s motion for new trial.6 See Cueva, 339 S.W.3d at 878.
IV. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 15th day of December, 2014.
6 Appellant claims that S.J.P. v. Thaler, No. 4:09–CV–112–A, 2010 WL 5094307 (N.D. Tex. Dec.
3, 2010) compels reversal in this case. Appellant argues that S.J.P. is factually similar to the present case and because the district court in S.J.P. ruled that the defendant received ineffective assistance of counsel, we must do the same in appellant’s case. We disagree, noting that district court’s ruling in S.J.P. was reversed by Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011). 14