Michael Wayne Bellar v. State

• Court: Court of Appeals of Texas
• Decided: November 16, 2018
• Docket: 07-18-00059-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00059-CR

MICHAEL WAYNE BELLAR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 222nd District Court, Oldham County, Texas Trial Court No. OCR-16A-001, Honorable Kent Birdsong, Presiding

November 16, 2018

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

Michael Wayne Bellar appeals his conviction for indecency with a child.1 Two

issues pend for our review. The first concerns the sufficiency of the evidence to support

the conviction and the second, the alleged ineffectiveness of his trial attorney. We affirm.

1 For purposes of this appeal, we call the victim “Laura.” Issue One – Sufficiency of the Evidence

Appellant initially contends that the jury verdict and his conviction should be

reversed because no evidence corroborated the victim’s testimony and it was

geometrically impossible to do what he purportedly did. We overrule the issue.

The testimony of a child alone is sufficient to support a conviction for indecency

with a child if the victim informed anyone other than the defendant of the offense within

one year after it happened. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2018);

Ryder v. State, 514 S.W.3d 391, 396 (Tex. App.—Amarillo 2017, pet. ref’d). Yet, the

requirement to inform another person is inapplicable if the victim was 17 years old or

younger when the offense occurred. TEX. CODE CRIM. PROC. ANN. art. 38.07(b)(1).

Here, the State charged appellant, via indictment, with “engag[ing] in sexual

contact with [Laura] by pulling the underwear of [Laura], a child younger than 17 years of

age, and not the spouse of [appellant], in order to expose the genitals of [Laura].” He

purportedly did this with “the intent to arouse or gratify” his “sexual desire.” Evidence

offered to establish the accusation consisted, among other things, of Laura’s testimony.

She testified that she stood in front of appellant (Laura’s grandfather) who was sitting on

her bed. She wore panties, a bra, and a robe at the time because she was in the process

of preparing for work when appellant entered her room. Appellant’s eyes were about level

to her bustline as he pulled the front of her panties about 5.5 inches from her belly. Then,

he leaned forward and looked down into her panties. When asked if appellant saw her

vagina, she answered yes. This was after he had her sit on his lap while she was scantily

garbed and smoked a cigarette. The incident occurred when Laura was 15.

2 A person commits indecency with a child when, with a child younger than 17 years

old, the person, with intent to arouse or gratify the sexual desire of any person causes the

child to expose the child’s genitals. TEX. PENAL CODE ANN. § 21.11(a)(2)(B) (West Supp.

2018). The evidence we mentioned above is evidence upon which a rational fact-finder

could find, beyond reasonable doubt, that appellant committed the offense of indecency

with a child. See Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018) (stating

that when assessing the sufficiency of the evidence to support a conviction, the reviewing

court considers whether, after viewing all of the evidence in the light most favorable to the

verdict, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt). That appellant may have denied it or thought it

geometrically impossible to peer down his granddaughter’s underwear when sitting on

the bed simply created a fact dispute for the jury to decide. We cannot interfere with the

manner in which it resolved that dispute. See id. (stating that the standard of review

requires an appellate court to defer to the fact-finder’s responsibility to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts).

Issue Two – Ineffective Assistance

Next, appellant contends that he was denied the effective assistance of counsel

because his trial attorney did not object to two instances of purported bolstering. We

overrule the issue.

To succeed on a claim of ineffective assistance, the appellant must prove by a

preponderance of the evidence that his counsel’s performance was deficient and that the

deficiency prejudiced his defense. Prine v. State, 537 S.W.3d 113, 116-17 (Tex. Crim.

3 App. 2017); Sauseda v. State, No. 07-17-00100-CR, 2018 Tex. App. LEXIS 7811, at *3-

4 (Tex. App.—Amarillo Sept. 25, 2018, no pet. h.) (mem. op., not designated for

publication). The failure to establish one or the other element results in the rejection of

the claim. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

Illustrating prejudice requires the complainant to show that there was a reasonable

probability that but for the deficient performance, the result would have differed. Id. Here,

appellant argues that if trial counsel had objected to the purported evidence of bolstering,

the jury would not have heard the inflammatory and prejudicial evidence from the State’s

expert witness. He did not attempt to explain how the outcome would have differed,

whether the difference be in the finding of guilt or the sentence imposed. Indeed, he did

not even posit that there would have been a different outcome. Having failed to address

the prejudice element of the test, he did not establish his entitlement to relief. Ladd v.

State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999) (holding that because the appellant

made no effort to illustrate prejudice, the omission precluded any relief). Thus, we need

not decide whether trial counsel’s performance was deficient. Cox v. State, 389 S.W.3d

817, 819 (Tex. Crim. App. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 697,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), when stating that “‘[i]f it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should

be followed’”).

We overrule appellant’s issues and affirm the judgment.

Brian Quinn Chief Justice

Do not publish.