Villalobos, Jesus

Opinion

12.10-15 PD-1210-15 0 f-\; G; ff\i AL COURT OF APPEALS NO. 03-13-00687-CR

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

JESUS VILLALOBOS, Appellant/Petitioner

v.

THE STATE OF TEXAS, RFCl Appellee/Respondent COURT^ft"^ NOV 12 2015 On appeal from the Third Court of Appeals Austin, Texas «0©lAcOSfa,Gtefk

PETITION FOR DISCRETIONARY REVIEW . ;t~cIo!L^ - w„r, »„pCRIMINAL APrr'' i .""IV 1 r> -----

Abel Acosta, Clerk

JESUS VILLALOBOS PETITIONER TDCJ No. 01890616 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886 TABLE OF CONTENTS

Page

Index of Authorities ii

Statement Regarding Oral Argument 1

Statement of the Case 2

Statement of Procedural History 3

Questions Presented for Review 3

Argument 3

Prayer 13

Certificate of Service 14

Appendix

Court of Appeals' Memorandum Opinion INDEX OF AUTHORITIES

CASES Page Broderick v. State, 35 S.W.3d 67 (Tex. App.-Texarkana 2000) 6 Cuyler v. Sullivan, 446 U.S. 335 (1980) 4

Evitts v. Lucey, 469 U.S. 387 (1985) 4

Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) 10 Fuller v. State, 224 S.W.3d 823 (Tex. App.-Texarkana 2007)...8,11 Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) 6 Hernandez v. State, 998 S.W.2d 770 (Tex. Crim. App. 1999) 5 Ramirez v. State, 301 S.W.3d 410 (Tex. App.-Austin 2009) 5 Saucedo-Zavala v. State, No. 03-13-00477-CR (Tex. App.-Austin 2014)..10

Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997) 8 Strickland v. Washington, 446 U.S. 668 (1984) 4,5,10 Villalobos v. State, No. 03-13-00687-CR (Tex. App.-Austin 2015).3 CONSTITUTIONAL PROVISIONS

U.S. CONST, amend. VI 4

STATUTES

TEX. CODE CRIM. PROC. art. 38.072 3,6,7,11,12,13 TEXAS RULES OF EVIDENCE

TEX.R.EVID. 608 8

TEX.R.EVID. 609 .8

li PD-1210-15

COURT OF APPEALS NO. 03-13-00687-CR

THE STATE OF TEXAS, Appellee/Respondent

On appeal from the Third Court of Appeals Austin, Texas

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

JESUS VILLALOBOS, Appellant/Petitioner, petitions the Court to review the decision affirming the judgment and sentence in

case number 03-13-00687-CR.

STATEMENT REGARDING ORAL ARGUMENT

Because the issues, facts, legal authorities and arguments

pertinent to the instant petition are adequately addressed in this

brief, Petitioner respectfully asserts that the Court's decisional

process would not be significantly aided by oral arguments. Accord- ingly, Petitioner does not request oral argument. STATEMENT OF THE CASE

Petitioner was charged by indictment in this cause on March

12, 2013. The indictment contained three counts. Count I alleged that Petitioner committed the offense of continuous sexual abuse

of a child. Count II alleged that Petitioner committed the offense

of indecency with a child by contact and Count III alleged that Petitioner committed the offense of indecency with a child by exposure. (CR1:16-17). Jury selection occurred on October 14, 2013. (RR2:11-189). On October 15, 2013, Petitioner entered a plea of not guilty. (RR3:30). On October 16, 2013, after hearing the evidence and the argument from counsel, the jury deliberated and returned a verdict of guilty to Count I (continuous sexual

abuse of a child) and Count II (indecency with a child by contact). The jury also found Petitioner guilty of two lesser-included of

fenses (aggravated sexual assault of a child and indecency with a child by contact). However, the trial court vacated the guilty verdicts for the two lesser-included offenses. (RR4:38-39). On

October 16,2013, after hearing the evidence and argument from

counsel, the jury assessed Petitioner's punishment at Life im

prisonment for Count I of the indictment and twenty (20) years

imprisonment for Count II of the indictment. (CRl:83-88). Peti

tioner was sentenced that day. (RR4:73-74; CRl:89-90, 92-93). A

motion for new trial was filed on October 25, 2013. (CR1:104-06).

Notice of appeal was filed on October 16, 2013. (CR1:68). The trial

court's certification of defendant's right to appeal was filed on October 16, 2013. (CR1:82). STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals for the Third District of Texas issued

a memorandum opinion on August 26, 2015. The Court affirmed Mr.

Villalobos' judgments and sentences. Villalobos v. State, No. 03- 13-00687-CR (Tex.App.-Austin August 26, 2015). QUESTIONS PRESENTED FOR REVIEW

1. Did Petitioner's trial counsel render ineffective assist

ance of counsel?

2. Did the trial court err in failing to conduct the hearing mandated by Art. 38.072, V.A.C.C.P., to determine which one, if

any, of the four outcry witnesses named by the State was a true

outcry witness?

ARGUMENT

This case presents two questions, one constitutional, ripe

for review. In overruling Petitioner Jesus Villalobos' first point, which concerns the ineffective assistance of trial counsel, the

Third Court of Appeals issued a decision that decides an important

question of state and federal law in a way that conflicts with the

applicable decisions of the Court of Criminal Appeals and the Su

preme Court of the United States. In overruling Mr. Villalobos'

second point, which concerns the trial court's failure to conduct

a mandatory hearing, the Third Court of Appeals issued a decision

that appears to misconstrue a statute.

Ineffective Assistance of Counsel Issue

In affirming the trial court's decision concerning trial coun

sel's acts and omissions, the Third Court of Appeals issued a deci sion that decides an important question of state and federal law in a way that conflicts with the applicable decisions of the Court of

Criminal Appeals and the Supreme Court of the United States. The

State argued that the record on appeal was not sufficient to show

that counsel's representation was constitutionally deficient. In

actuality, there were nine seperate acts or omissions presented in

the appeal. For some issues, the record was sufficient to address

the issue of ineffective assistance of counsel. When analyzing this

issue, the Third Court of Appeals overlooked the case law most on

point, and relied instead on a blanket decision to deny relief.

Every criminal defendant is entitled to the effective assist

ance of counsel. Sixth Amendment, United State's Constitution. "That

a person who happens to be a lawyer is present at trial alongside

the accused, however, is not enough to satisfy the constitutional

command . . . .An accused is entitled to be assisted by an attorney,

whether retained or appointed who plays the role necessary to ensure

that the trial is fair." Strickland v. Washington, 446 U.S. 668, at

685 (2984). "Because the right to counsel is so fundamental to a

fair trial, the Constitution cannot tolerate trials in which coun

sel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits." Evitts v. Lucey, 469 U.S.

387, 395 (1985). "Unless a defendant charged with a serious offense

has counsel able to invoke the procedural and substantive safeguards

that distinguish our system of justice, a serious risk of injustice

infects the trial itself. When a State obtains a criminal conviction

through such a trial, it is the State that unconstitutionally de prives the defendant of his liberty." Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). Claims of ineffective assistance of counsel are governed by

the United States Supreme Court's decision in Strickland v. Wash

ington, 466 U.S. 668 (1984). The Strickland standard applies in

noncapital sentencing proceedings. Hernandez v. State, 998 S.W.2d

770 (Tex. Crim. App. 1999); see also Ramirez v. State, 301 S.W.3d 410 (Tex. App.-Austin 2009, no pet.). Under the two-pronged Strick land standard, a defendant must show that (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair

outcome. Strickland, 466 U.S. at 687-88.

A. Deficient Performance

A review of the trial court record in this cause shows numer

ous instances of deficient representation which seriously damaged

Petitioner's right to a fair trial. Individually and certainly col lectively, these incidents show that Petitioner's trial attorneys had no grasp of the law related to the offense of continuous sexual

abuse of a child and indecency with a child by contact, had no grasp

of the Rules of Evidence, had no grasp of the Texas Code of Criminal

Procedure and had hot thought out proper trial strategy for either

the guilt-innocence or punishment phase of the trial. The end re

sult was that Petitioner's trial counsels' performance demonstrated

a complete lack of ability to fairly represent Petitioner that re

sulted in Petitioner being denied a fair trial. A review of the

trial performance by Petitioner's trial counsel clearly shows a deficient performance that in no way could be classified as reason

able conduct and as such resulted in an unreliable or fundamentally

unfair outcome. Listed below are the worst incidents of deficient representation that occurred during Petitioner's trial.

(1) Failure to Request a Hearing to Determine Who the Outcry Witness Was

Prior to trial, the State filed the State's Notice of Intent

to Introduce Outcry Statement in accordance with Art. 38.072, V.A.

C.C.P. (CRl:27-29). In its notice the State listed four outcry wit nesses: the child's mother Sabrina Villalobos, Officer L. Toporek of the Pflugerville Police Department, Sexual Assault Nurse Exam iner Linda Galvin, and forensic interviewer Megan Webb. Art. 38.072, V.A.C.C.P. allows the admission of a hearsay statement made to an outcry witness by certain abuse victims, includ ing a child victim of a sexual offense. The outcry witness if the first person over the age of 18, other than the defendant, to whom the child spoke about the offense. Art. 38.072, Sec. 2(a), V.A.C.C.P. The statement must be "more than words which give a general allusion that something in the area of child abuse is going on;" it must be made in some discernable manner and is event-specific rather than

person-specific. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). Hearsay testimony from more than one outcry witness may be admissible under Art. 38.072 only if the witnesses testify about

different events. Broderick v. State, 35 S.W.3d 67, 73-74 (Tex. App.- Texarkana 2000, pet. ref'd). There may be only one outcry witness per event. Id. In order to invoke the statutory exception, the party

intending to offer the statement must notify the adverse party of

the names of the outcry witnesses and a summary of their testimonies.

The trial court must conduct a reliability hearing of the witnesses

outside the presence of the jury, and the child victim must testify or be available to testify at the proceeding. Art. 38.072, Sec. 2

(b), V.A.C.C.P. Here, no reliability hearing was conducted, nor did Petitioner's trial counsel request such a hearing. As a result, three witnesses:

the child's mother (Sabrina Villalobos), Officer Lana Toporek of the

Pflugerville Police Department and forensic interviewer Meagan Webb

were all allowed to testify as to the hearsay statements of Amelia

(a pseudonym) as she related the story of the abuse she allegedly suffered. Because no reliability hearing was conducted, the testi

mony of two of these witnesses constituted inadmissible hearsay and

should not have been heard by the jury. This inadmissible testimony

constituted improper bolstering of Amelia's testimony and allowed the jury to hear multiple witnesses repeat hearsay statements they

heard from the child. The effect was that the jury was bombarded

by repeated restatements of Amelia's story. There is no reasonable trial strategy to explain trial counsel's failure to request a hearing under Art. 38.072, V.A.C.C.P.

(2) Failure to Object When Officer Toporek Testified that the Alleged Victim was Very Sincere About Everything

After Officer Toporek was improperly allowed to repeat every

thing that Amelia had told her, she went on to testify to the fol

lowing :

"A. I mean, she probably cried actual tears the whole time. Her voice was quivering. Her body language was -- she was closed off on herself, very protective of herself. She would reach out to me and put her arms around me and hold my hand and those types of things, but she was shaking and very sincere about everything. I mean, she was just like a scared little girl.

(RR3:141) (emphasis added). As noted earlier in this point of error, testimony regarding

a witness's truthfulness is clearly inadmissible. Fuller v. State, supra; Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997); TEX.

R.EVID. 608. Defense counsel obviously had no grasp of the rules

of evidence and offered his client no protection whatsoever to the

State's continuous violations of evidentiary protections. (3) Failure to Object to Petitioner's Admission of His Prior DWIs in His Videotaped interview with Detective Wilson.

During his interview with Detective Wilson, Petitioner admit

ted that he had two prior arrests for driving while intoxicated.

During the guilt-innocence portion of the trial, State's Exhibits

17 and 18, the video of Petitioner's entire interview with the de

tective were introduced into evidence. Petitioner's trial attorney voiced no objection to the introduction into evidence of his history

of driving while intoxicated convictions. (RR3:228-30). Rule 404(b) of the Texas Rules of Evidence provides in perti nent part that "evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that

he acted in conformity therewith." A competent criminal defense at torney should know that a jury is not entitled to hear evidence of

his client's criminal history during the guilt-innocence phase of

the trial unless his client testifies and opens himself up to im

peachment with his prior criminal history. TEX.R.EVID. 609. In a

situation such as was presented in this case, a competent criminal

defense attorney would have requested the State to redact any men

tion of those prior DWI convictions from the videos before playing

them to the jury. The trial judge would have supported a competent

8 criminal defense attorney's request and ordered it to be done. In Petitioner's case, however, his trial attorney never requested that

the State redact this information from the videos nor did he object

to the introduction of these extraneous offenses into evidence when

State's Exhibits 17 and 18 were admitted into evidence.

There could be no reasonable trial strategy that would call

for a defense attorney to sit silently by and allow the jury to

hear about an inadmissible extraneous bad act his client had com

mitted. At this stage of the proceedings - guilt-innocence - there

was no conceivable reason that would allow these extraneous offenses

to be admissible into evidence. Trial counsel was totally ineffect

ive in protecting his client in this instance.

(4) Making a Punishment Argument During His Closing Argument at Guilt-Innocence.

Perhaps the most egregious error that occurred during Peti

tioner's trial occurred during closing argument for the guilt-inno

cence phase of the trial. After prosecutor Kim Williams gave her

closing argument on the question of guilt/innocence, Petitioner's trial counsel gave the following argument in pertinent part:

"There's plenty to choose from. There's from 5 to 99 and 2 to 20. There's all kinds of numbers you can do, but what can we do that saves a little bit -- that saves a little bit of us, that saves a little bit of those twins, that saves a little bit of humanity. I don't know. I couldn't argue to you this, give him a short sentence would be best. I wouldn't dare. I don't know that sending him to prison for the rest of his life is any better and if we gain anything else from that. Is he really a threat to society at 45, 46, 47 years old? In 25 years -- I mean that's a life sentence...I know whatever y'all decide will be right...

(RR4:23-25).

Immediately after defense counsel's closing, the second pros- ecutor, Jeremy Sylestine, commented on defense counsel's totally

improper closing:

Maybe Mr. Jenkins has forgotten that we have not found his client guilty yet. There's another step before we get to what the punishment may be in this case.

(RR4:25-26) (emphasis added). An effective trial attorney must be familiar with trial pro

cedure. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) Here it is obvious from the record that trial counsel had no clue

as to what he was doing. Petitioner's case bears some semblance to the case of Saucedo-Zavala v. State, 2014 Tex.App. LEXIS 6245 (Tex.

App.-Austin, No. 03-13-00477-CR, delivered June 11, 2014) and which

the Third Court of Appeals reversed for ineffective assistance of

counsel. Just as the trial counsel in Saucedo-Zavala had no clue

as to what he was doing, Petitioner's trial counsel also had no idea what he was doing and his jury argument during guilt-innocence

definately shows that.

Taken cumulatively, these failures by Petitioner's defense attorney demonstrated that his performance was deficient and he

rendered ineffective assistance to Petitioner. Thus, Petitioner has

satisfied the first prong of Strickland.

In this case, the State, because of the errors of defense coun

sel, was allowed to run uninhibited up and down the field. There was

no testing of the State's case. Petitioner did not even receive the

minimal standard of advocacy. The performance of Petitioner's trial

attorney severely prejudiced his client's interests and therefore did affect the outcome of the case. Had trial counsel done his job,

and been an effective advocate for his client, there is a reasonable

10 probability that the outcome of the punishment phase would have

been different. The jury assessed Petitioner's punishment at the maximum -- Life imprisonment for Count I and twenty (20) years im prisonment for Count II. Counsel's performance severely prejudiced his own client's interests and did affect the outcome of the case.

Fuller v. State, 224 S.W.3d 823 (Tex. App.-Texarkana 2007). Having nominal representation at trial does not suffice to

render a trial constitutionally adequate. A party whose trial coun

sel is unable to provide effective representation is in no better

position than someone who has no counsel at all, and indeed when

counsel performs as trial counsel did in this case, may be worse

off. Here, Petitioner's trial attorneys harmed him significantly.

In sum, the Third Court of Appeals' decision decided an im

portant question of state and federal law in a way that conflicts

with the applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States. Petitioner's trial counsel's performance was deficient and harmful. Consequently, Mr. Villalobos

respectfully asks the Court of Criminal Appeals to grant review in

this matter.

Trial Court's Error in Failing to Conduct the Hearing Mandated by Art. 38.072, V.A.C.C.P. Issue

In overruling the trial court's error issue raised by Mr. Vil lalobos, the Third Court of Appeals issued a decision that appears

to misconstrue a statute.

Art. 38.072, V.A.C.C.P. provides that an outcry statement of a child victim which would normally be hearsay, may be admissible

as a hearsay exception under specific conditions. Specifically re-

11 garding sexual offenses, if the child was younger than 14 years of

age at the time the acts were committed, statements that described

the alleged offense are admissible if they were made by the child

to the first person, eighteen years of age or older. Art. 38.072,

V.A.C.C.P. Before the statement may be admitted into evidence, cer

tain procedural steps must be taken. These are outlined in Art.

38.072, Sec. 3:

"(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement: (A) notifies the adverse party of its intention to do so; (B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and (C) provides the adverse party with a written summary of the statement; (2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circum stances of the statement; and (3) the child...testifies or is available to testify at the proceeding in court or in any other manner provided by law."

Art. 38.072, V.A.C.C.P.

Petitioner's trial started on October 14, 2013. On August 14,

2013, the State gave notice.that it intended to introduce outcry

testimony. The State's notice listed four potential outcry witnesses

and gave summaries of their expected testimony: Sabrina Villalobos

(Amelia's mother), Officer Lana Toporek of the Pflugerville Police

Department, Linda Galvan (the Sexual Assault Nurse Examiner) and Megan Webb (the forensic interviewer from the Center for Child Pro tection). (CR1:27-29). Thus the State complied with the require

ments of the article. The trial court, however, failed to hold the

hearing mandated by Art. 38.072. As a result, all of the listed

12 potential outcry witnesses were allowed to testify. Unfortunately,

Petitioner's trial counsel failed to object to the lack of the hear ing and then failed to object to the hearsay testimony of each of

the four witnesses. These failures in his duty to protect his client

are part of the argument under Question Number 1 dealing with inef

fective assistance of counsel.

The requirement of the trial court to hold this hearing is

mandated. Nothing in the statute requires that the defense ask that

the hearing be held. Rather the holding of the hearing and a find

ing that the outcry statement is reliable is a requirement that must

be made before the hearsay exception can occur. In addition, the

trial court had the duty to determine which of the statements prof

fered by the State was the true outcry statement (the "first" state

ment). The trial court erred in failing to conduct the hearing and as a result, the jury was allowed to hear this inadmisssible and

extremely damaging testimony not from just one witness, but from

three other improper witnesses.

In short, the Third Court of Appeals' loose construction of

Article 38.072 of the Texas Code of Criminal Procedure greatly

overlooks the hearing mandated by the plain language of the article.

As a result, Mr. Villalobos respectfully suggests that some guidance

from the Court of Criminal Appeals is needed.

PRAYER

For the reasons herein alleged, Petitioner Jesus Villalobos

prays that this Court grant this petition and, upon reviewing the

judgment entered below, reverse this cause and remand this case for

a new trial, alternatively, a new trial on punishment.

13 Dated: November 6, 2015.

rS FLG&ES VILLALOBOS PETITIONER TDCJ No. 01890616 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the fore

going petition has been served by placing same in the United States

Mail, postage prepaid, on the 6th day of November, 2015, addressed

to:

State Prosecuting Attorney Mr. Jeffrey L. Van Horn Post Office Box 13046 Austin, Texas 78711-3046

Travis County District Attorney Ms. Rosa Theofanis Assistant District Attorney Post Office Box 1748 Austin, Texas 78767-1748

2<£4«4 'sfc&M* JESOS FLORES VILLALOBOS PETITIONER

14 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00687-CR

Jesus Villalobos, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. D-l-DC-13-600008, THE HONORABLE CLIFFORD BROWN, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Jesus Villalobos guilty ofcontinuous sexual abuse ofa young

child and indecency with a childby sexual contactfor sexually abusing his stepdaughter.1 SeeTex.

Penal Code §§ 21.02,21.11(a)(1)- The jury assessed appellant's punishment at confinement for life

in the Texas Department of Criminal Justice-Institutional Division for the continuous sexual abuse

and 20 years for the indecency. See id. §§ 21.02(h), 12.33. The trial court sentenced appellant in

accordance with the jury's verdict, ordering the sentences to be served concurrently. On appeal,

appellant complains about ineffective assistance of counsel at trial and the trial court's failure to

1 Thejury heard evidence that from the age of 11 until she was 14, appellant perpetrated various sexual acts against his stepdaughter, Amelia (a pseudonym), on numerous occasions, including "putting his fingers in her vagina" "a lot," "sucking on her boobs" "many times," and "licking inside and outside her vagina with his tongue" "multiple times." Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we do not further recite them in this opinion except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. conduct a reliability hearing pursuant to the outcry statute. Finding no reversible error, we affirm

the trial court's judgments of conviction.

DISCUSSION

Ineffective Assistance of Counsel

In his first point of error, appellant contends that his trial attorneys rendered

ineffective assistance at trial. He complains of nine actions or inactions on the part of trial counsel,

including failing to file a motion to suppress until the day of trial, failing to object to certain

questions propounded to the victim's mother, failing to request a hearing to determine the outcry

witness, failing to preserve error regarding hearsay testimony from the police officer who

interviewed the victim, failing to preserve error regarding hearsay testimony from the forensic

interviewer from the children's advocacy center, failing to object to the interviewing officer's

testimony about the victim's sincerity during the interview, failing to object to evidence concerning

appellant's prior DWI offenses contained in the confession video, making a punishment argument

during closingjury argument ofthe guilt-innocence phase, and failing to present any evidence during

the punishment phase.

To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

defendant. Stricklandv. Washington, 466 U.S. 668,687 (1984); Nava v. State, 415 S.W.3d289,307

(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's performance fell below

an objective standard of reasonableness under prevailingprofessional norms. Strickland, 466 U.S.

at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

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

Appellate review of counsel's representation is highly deferential; we must "indulge

in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08;

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious

nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);

Goodspeedv. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record by

itselfbe sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. Iftrial

counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find

him to be deficient unless the challenged conduct was "so outrageous that no competent attorney

would have engaged in it." Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d

at 392.

Further, even if an appellant shows that particular errors of counsel were

unreasonable, he must further show that they actually had an adverse effect on the defense.

Strickland, 466 U.S. at 693-95; Cochran v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no

pet.). It is not sufficient that an appellant show, with the benefit of hindsight, that his counsel's

actions or omissions duringtrialwere of questionable competence. Lopez v. State, 343 S.W.3d 137, 142^-3 (Tex. Crim. App. 2011). Further, merely showing that the errors had some conceivable

effect on the proceedings will not suffice. Strickland, 466 U.S. at 693; Ex parte Martinez,

330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The appellant must prove that counsel's errors,

judged by the totality of the representation, not by isolated instances of error or by a portion of the

trial, denied him a fair trial. Strickland, 466 U.S. at 695.

In this case, appellant filed a motion for new trial. However, he did not raise a claim

of ineffective assistance of counsel in the motion. Thus, the record is silent as to why trial counsel

acted or failed to act in the manner that appellant now complains about on appeal. The record is

silent as to whether there was a strategic reason for counsels' conduct or what the particular strategy

was. Consequently, the record before this Court is not sufficiently developed to allow us to evaluate

those supposed improper actions or failures to act because "[n]either [his] counsel nor the State have

been given an opportunity to respond to" the claims of ineffectiveness. See Menefield, 363 S.W.3d

at 593. Nevertheless, we address appellant's assertions regarding ineffective assistance.

Motion to Suppress

Appellant first claims that his trial attorneys were ineffective for failing to file a

motion to suppress appellant's confession until the day ofjury selection. Trial counsel have not been

given the opportunity to explain why they did not file the motion earlier or to provide reasons for the

delay. Thus, the record is silent as to the reasons for the late filing of the motion. Moreover, while

appellant cites to portions of the record suggesting the trial court was displeased by the late filing

of the motion, the record also reflects thatthe court conducted a hearing on the motion, outside the

jury's presence, prior to the start of testimony. Appellant does not complain aboutthe trial court's ruling on the motion.2 Appellant cites to no authority, and we are aware ofnone, indicating that trial

counsel's performance is deficient based solely on the untimely filing of a motion to suppress when

the trial court accepted the motion and conducted a hearing on it. Furthermore, because the trial

court conducted a hearing on the motion notwithstanding the late filing, appellant has failed to

demonstrate prejudice.

OutcryHearing, Outcry Testimony, and Opinion Testimony

Appellant also asserts that his trial attorneys were ineffective for failing to request a

reliability hearing under article 38.072 of the Code of Criminal Procedure, commonly known as the

outcry statute. See Tex. Code Crim. Proc. art. 38.072. He maintains that as a result of that failure,

three witnesses testified about Amelia's outcry statements concerning the sexual abuse: Amelia's

mother, the interviewing police officer, and the forensic interviewer from the children's advocacy

center. Appellant contends that because no reliability hearing was conducted to determine the outcry

witness, the testimony of two of those witnesses constituted inadmissible hearsay. Thus, in related

claims, appellant argues that his trial attorneys were ineffective for failing to object to the hearsay

testimony elicited by the State from the interviewing police officer and the forensic interviewer about

Amelia's outcry statements to them. In similar complaints, appellant contends that his trial attorneys

2 Appellant urged in the motion that a statement he made to police was involuntary based on his blood sugar level; however, appellantacknowledgesin his briefthat during the hearingon the motion he conceded in his testimony that he knew what he was doing and was aware of what was going on during theinterview withthedetective. Appellant's owntestimony defeated his claim that his statementwas involuntary becausehis blood sugar was abnormal and he was not awareof what he was doing when he confessed. were ineffective for failing to object to certain questions propounded or testimony elicited regarding

Amelia's credibility.

When a defendant is charged with certain sexual offenses against a child under the

age of 14, article 38.072 of the Texas Code of Criminal Procedure provides a statutory exception

to the hearsay rule for the victim's out-of-court statement describing the offense when

offered into evidence by the first adult the victim told of the offense. See id. § 2; Sanchez v. State,

354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Though the terms do not appear in the statute, the

victim's out-of-court statement is commonly referred to as an "outcry" or "outcry statement" and the

adult who testifies about the outcry is commonly referred to as an "outcry witness." For the outcry

statement to be admissible, the State must satisfy certain notice requirements, see Tex. Code Crim.

Proc. art. 38.072, § 2(b)(1), the trial court must conduct a hearing outside the presence of the jury

to determine the reliability of the outcry statement, see id. § 2(b)(2), and the victim must either

testify or be available to testify, see id. § 2(b)(3). The statute's procedural notice and hearing

requirements are mandatory and must be complied with. Long v. State, 800 S.W.2d 545, 547 (Tex.

Crim. App. 1990); see Sanchez, 354 S.W.3d at 484.

The trial court in this case did not conduct the requisite reliability hearing pursuant

to the statute, and trial counsel did not request that the court conduct the hearing or object to the

court's failure to conduct it. However, the record is silent as to counsels' trial strategy in not

requesting the hearing or not objecting to the lack of such hearing. Further, while appellant asserts

that the failure to conduct the reliability hearing resulted in the admission of inadmissible hearsay

evidence from two improper outcry witnesses, the record does not support that assertion.

6 As the State points out, Amelia's motherdid not testify about any of her daughter's

hearsay statements describing the sexual abuse offenses. She described the circumstances under

which Amelia gave her a note that she had written disclosing the sexual abuse. Shetestified about

confronting appellant with the note and his subsequent apology and admission to perpetrating the

sexual abuse Amelia wrote about. She also described Amelia's and appellant's demeanor throughout

these events. She did not, however, recite or testify about the contents of Amelia's note.

As for the testimonyof the interviewing police officerand the forensic interviewer,

the record reflects that both were proper outcry witnesses. Admissible outcry witness testimony

is event-specific, not person-specific. Eldred v. State, 431 S.W.3d 177, 181-82 (Tex.

App.—Texarkana 2014, no pet.); Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th

Dist.] 2012, pet. ref d). Thus, in cases where a child has been victim to more than one instance of

sexual assault, multiple outcry witnesses may testify about separate acts of abuse committed bythe

defendant against the child. Lopez, 343 S.W.3dat 140; Cruz-Romero v. State,No. 12-14-00090-CR,

2015 WL 1823582, at *2 (Tex. App.—Tyler Apr. 22, 2015, no pet.) (mem. op., not designated for

publication); Hernandez v. State, No. 05-12-01118-CR, 2014 WL 1178303, at *3 (Tex.

App.—Dallas Mar. 21, 2014, no pet.) (mem. op., not designated for publication); Brown v. State,

189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref d); Tear v. State, 74 S.W.3d 555, 559

(Tex. App.—Dallas 2002, pet. refd). While both the officer and the interviewer testified about

Amelia's outcry statements tothem, each testified about different abuse events. The officer testified

about Amelia's hearsay statement to her, which gave a general description of the abuse appellant

perpetrated against her but focused on a detailed description ofthe last incident before the sexual abuse was reported to police. The forensic interviewer testified that she discussed the last incident

with Amelia during the forensic interview, however, she recounted no details of that discussion in

her testimony. She testified that Amelia spoke to her about "incidents that had occurred in the past,"

and the hearsay statements she described related to the abuse events appellant perpetrated against

Amelia throughout the 5th, 6th, and 7th grades—excluding the final incident. The interviewer did

not testify about the abuse event that was the last incident before the police were notified. Our

review ofthe record demonstrates that the two outcry witnesses were discussing different occasions

of assault. See Purgason v. State, 405 S.W.3d 171, 182 (Tex. App.—Amarillo 2013, pet. ref d);

see, e.g., Osborne v. State, No. 07-13-00156-CR, 2015 WL 3463047, at *7 (Tex. App.—Amarillo

May 29, 2015, no pet. h.) (mem. op., not designated for publication) (because teacher

and investigator described different events, testimony of both was admissible); Josey v. State,

97 S.W.3d 687,692 (Tex. App.—Texarkana 2003, no pet.) (mother proper outcry witness for act of

oral contact, but forensic interviewer proper outcry witness for act ofdigital penetration). Thus, the

testimonyofboth outcrywitnesseswas admissible. Appellant's counselcannot be found ineffective

for failing to objectto admissible testimony. SeeExparte White, 160 S.W.3d 46, 53 (Tex. Crim.

App. 2004) (holding counsel not ineffective for failing to object to admissible testimony).

Appellant also complains aboutcounsels' failure to objectto questions propounded

to Amelia's mother and testimony elicited from the interviewing officer concerning

Amelia's credibility. The complained-of questions to Amelia's mother occurred during the

following exchange:

Q. Did you believe [Amelia] when she told you this? A. Yes.

Q. And did you think she was making it up to retaliate for any reason, for looking at her phone, or retaliating for anything else?

A. Not at all.

In context, these questions could be construed to be inquiries into the possible motivation for her

daughter to fabricate the sexual abuse allegations rather than questions relating to Amelia's

credibility. The complained-oftestimony from the interviewing police officer occurred during the

Q. While you were speaking with her, what observations would you say you made about her body language and facial expressions while she was giving this recollection?

A. I mean, she probably cried actual tears the whole time. Her voice was quivering. Her body language was —she was closed off on herself, very protective of herself. Shewouldreachout to me and put her arms aroundme and hold my hand and those types of things, but she was shaking and very sincere about everything. I mean, she was just like a scared little girl.

It is clear from the context, including the question asked, that the officer's reference to Amelia's

sincerity was part of her description of her observations of Amelia's demeanor during the interview

rather than a comment on her truthfulness about the allegations.

Nevertheless, even assuming the complained-of hearsay testimony from the

interviewing officer and the forensic interviewer was not proper outcry testimony, and the

complained-oftestimony from Amelia's mother and the interviewing officer was improper opinion

testimony, trial counsel were not given anopportunity to explain their reasoning for not objecting to the testimony. The Court of Criminal Appeals has rejected similar complaints concerning outcry

testimony and opinion testimony regarding a victim's credibility when the record is silent as to the

reasons trial counsel failed to object:

The record is silent as to why trial counsel failed to object to the outcry-witness testimony. The record could have been supplemented through a hearing on a motion for new trial, but appellant did not produce additional information about trial counsel's reasons for allowing all three outcry witnesses to give similar testimony about the same events or for allowing opinion testimony about the credibility of the complainant, both without objection. Appellant has thus failed to meet his burden under the first prong of Strickland, and the court of appeals erred in finding otherwise. Because appellant failed to meet his burden on the first prong of Strickland, we need not consider the requirements of the second prong.

Lopez, 343 S.W.3d at 143-44. For these reasons, appellant has failed to demonstrate ineffective

assistance of counsel, founded in the record, as relates to the outcry hearing, outcry testimony, or

purported opinion testimony.

Evidence ofPrior D Wis

Appellant also complains about trial counsels' failure to object to portions of the

video of his confession where he referred to his two prior arrests and convictions for driving while

intoxicated. He maintains that "there could be no reasonable trial strategy" for a defense attorney

to allow the jury to hear evidence of a defendant's criminal history, and trial counsel should have

objected to the evidence and requested a redaction of this evidence from the video. However, the

record is silent as to trial counsels' reasons for not objecting to or requesting a redaction of

this evidence.

10 When the record is silent as to defense counsel's strategy, we will not guess at

counsel's trial tactics or speculate about the reasons for taking certain actions and not taking others.

See Id. at 142-43 ("[T]he court must not engage in retrospective speculation."). Indeed, such

speculation could just as easily support the notion that trial counsel acted reasonably and

competentlyin makingthe decisionsnow formingthe basis for the appellant's ineffectiveassistance

claims. Here, there may be reasonable explanations for not objecting to or requesting redactionof

appellant's criminalhistoryfromthe video. For example, whilethe evidence of appellant's criminal

history was arguably inadmissible character evidence, see Tex. R. Evid. 404(b) (prohibiting use of

evidence of other crime, wrong, or bad act "to prove a person's character in order to show that on

aparticular occasion theperson acted inaccordance withthecharacter"), counsel could havedecided

that the impact of misdemeanor DWIs was negligible and could have further reasoned that a

redaction in the confession video might appear to the jury that appellant was attempting to hide

something. Or, in attempt to show that appellant was not a child predator, counsel could have

wanted the jury to know that appellant's only criminal history involved minor offenses when

compared to the current conduct he was accused of. Ultimately, we do not know whycounsel did

not objector seekredaction. Absent recordevidence regarding counsels' strategy or reasoning, we

will presume they exercised reasonable professional judgment. See Hillv. State, 303 S.W.3d 863,

879 (Tex. App.—Fort Worth 2009, pet. ref d); Poole v. State, 974 S.W.2d 892, 902 (Tex.

App.—Austin 1998, pet. refd);see also Lopez, 343 S.W.3d at 143. Further, absent record evidence

regarding counsels' strategy, we cannot speculate as to whether a valid strategy existed, and thus

appellant cannot rebut the strong presumption of reasonable assistance. Parker v. State,

11 No. 03-10-00739-CR, 2012 WL 3630163, at *6 (Tex. App.—Austin Aug. 22,2012, no pet.) (mem.

op., not designated for publication).

Moreover, appellant has failed to demonstrate how the admission ofthe evidence of

his misdemeanor DWI history prejudiced him. Here, there was ample evidence presented to the jury

that appellant sexually abused his stepdaughter as alleged in the indictment: the note Amelia wrote

to her mother disclosing the abuse, Amelia's detailed testimony recounting the sexually abusive acts

appellant perpetrated against her, the corroborating (and substantive) testimony of the outcry

witnesses, the testimony about appellant's admission to Amelia's mother when confronted with the

note, and appellant's confession. We cannot say that, in the face of all the evidence the jury heard

about the sexual abuse, it is reasonably probable the jury would have reached a different conclusion

had appellant's trial counsel objected to or requested redaction of the evidence of his prior

misdemeanor DWIs. See Exparte Martinez, 330 S.W.3d at 904 ("It is unlikely, in the face ofall the

evidence with which the jury was presented, that the jury would have reached a different conclusion

in the absence of the [complained-of] evidence[.]").

Guilt-Innocence Argument

Appellant also contendsthat his counsel inadequately arguedthe case to the jury at

the close of the guilt-innocence phase of the trial. He complains that counsel made a punishment

argument during the closing argument at guilt-innocence.

Closing argument is a matter, generally, of strategy. See Thompson v. State,

915 S.W.2d 897, 904 (Tex. App.—Houston [1st Dist] 1996, pet. refd). The type of closing

argument to make is an inherently tactical decision "based onthe way a trial is unfolding, the trial

12 strategy employed, the experience and judgment of the defense attorney, and other factors." Taylor

v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. refd). "[C]ounsel has wide

latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in

his closing presentation is particularly important because of the broad range of legitimate defense

strategy at that stage." Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam). Therefore,

judicial review of an attorney's summation is highly deferential, id. at 6, and we will second-guess

that strategy only if the attorney's actions are without any plausible basis. See Bone v. State,

11 S.W.3d 828, 836 (Tex. Crim. App. 2002) ("Under Strickland, the defendant must prove, by a

preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific

act or omission.").

Here, it is plausible that counsel, after reviewing the evidence presented, concluded

that the best strategy might be to appear open and honest to the jury in hopes of mitigating

punishment. By the time of closing argument, the jury had heard considerable evidence of

appellant's guilt, not least of which was his own confession to the police. In light of these

circumstances, an attempt to mitigate punishment could have been a realistic strategy. See Flemming

v. State, 949 S.W.2d 876, 881 (Tex. App.—Houston [14th Dist.] 1997, no pet.); see, e.g., Alexander

v. State, No. 09-08-00372-CR, 2009 WL 4681369, at *5 (Tex. App.—Beaumont Dec. 9,2009, pet.

refd) (mem. op., not designated for publication) ("Faced with the mountain of incriminating

evidence pointing to [appellant] as one of the perpetrators of the robbery, trial counsel here, like

counsel for [co-defendant], cannot be faulted for looking ahead to the punishment phase in hopes

of securing a sentence from thejury significantly less than confinement for life."). Also, a review

13 of the record shows that trial counsel referenced a portion of the jury charge (unidentified in the

record) telling the jury to ignore that portion, which could have been an attempt to focus the jury on

the lesser-included offenses. This could be considered a reasonable strategy given the fact that the

greater offense, continuous sexual abuse of a young child, carries a punishment range with a

minimum incarceration of 25 years, see Tex. Penal Code § 21.02(h), and a defendant serving a

sentence for that offense is not eligible for release on parole, see Tex. Gov't Code § 508.145(a).

Becauseplausiblereasonsfor counsel's argumentexist, and counselwas not afforded

an opportunity to explain the reasons for giving the argument he gave, appellant has not shownthat

counsel's closing argument constituted deficient performance. Furthermore, giventheoverwhelming

evidence of appellant's guilt, appellant has failed to demonstrate that but-for trial counsel's

argument, it is reasonably probable thejury wouldnot have convicted him. SeeExparte Martinez,

330 S.W.3d at 904.

Lack ofPunishment Evidence

Finally, appellantcomplains that his trial attorneys were ineffective for failingto put

on"anyevidence whatsoever" during thepunishment phaseof trial. Henotes thata defense attorney

has an obligation to investigate andprepare fortrial,and summarily asserts that"counsel didnothing

tohelp [their] client atpunishment." He complains that"[t]hejurywas given absolutely noevidence

bythedefense to guide them intheir [sic] assessment ofpunishment." However, the "failure tocall

witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such

witnesses were available and appellant would benefit from theirtestimony." Perez, 310 S.W.3d at

894 (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)). Accordingly, a claim of

14 ineffective assistance of counsel based on counsel's failure to call witaesses fails in the absence of

a showing that such witnesses were available to testify and that the defendant would have benefitted

from their testimony. Ex parte White, 160 S.W.3d at 52. Here, the record fails to identify any

witnesses or evidence available to be presented during the punishment phase. Nor does appellant

establish the content of any unidentified evidence or testimony that would have benefitted him

during the punishment phase of trial. Appellant's claim that trial counsels' performance was

deficient or that he was harmed by counsels' alleged inadequate performance concerning the

punishment phaseis merespeculation withoutsupportin the record—both as to counsels' purported

failure to investigateor prepare for trial and the existence of beneficial evidence that was available

to be presented at the punishment phase. Such speculation does not constitute a demonstration,

founded in the record, that counsels' assistance was ineffective. See Villav. State, All S.W.3d 455,

463 (Tex. Crim. App. 2013).

Conclusion

On the record before us, appellant has failed to demonstrate deficient performance

onthe partof his trialattorneys or thathe suffered prejudice because ofthe alleged errors of counsel.

Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel. See

Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013) ("[U]nless there is a record

sufficient to demonstrate that counsel's conduct was not the product of an informed strategic or

tactical decision, a reviewing court should presume that trial counsel's performance was

constitutionally adequate 'unless the challenged conduct was so outrageous that no competent

attorney would have engaged in it.'"). We overrule appellant's first point of error.

15 Article 38.072 Hearing

In his second point of error, appellant complains about the trial court's failure to

conduct a hearing pursuant to the outcry statute. See Tex. Code Crim. Proc. art. 38.072.

As previously discussed, when a defendant is charged with certain sexual offenses

against a child under the age of 14 or a disabled individual, article 38.072 of the Texas Code of

Criminal Procedure provides a statutory exception to the hearsay rule for the victim's out-of-court

statement describing the offense when offered into evidence through the testimony of the first adult

the victim told of the offense. See id. § 2; Sanchez, 354 S.W.3d at 484. One of the procedural

provisions of the statuteis that the trial court must conducta hearingoutsidethe presenceof thejury

to determinethe reliabilityofthe outcrystatement. SeeTex. Code Crim. Proc. art. 38.072, § 2(b)(2).

The hearing requirement is mandatory and must be complied with. Long, 800 S.W.2d at 547; see

Sanchez, 354 S.W.3d at 484.

Appellant is correct in that the trial court did not conduct the requisite hearing

pursuant to the statute. However, at trial, appellantdid not object to the failure of the trial court to

conduct the hearing. Nor did he object to the admission of the outcry statements through the

testimony of the outcry witaesses designated by the State in its notice. Preservation of error is a

systemic requirement onappeal. Blackshearv. State, 385 S.W.3d 589,590(Tex. Crim. App. 2012);

Bostonv. State, 373 S.W.3d 832, 841 (Tex. App.—Austin 2012), aff'd,410 S.W.3d 321 (Tex. Crim.

App. 2013); seeBekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). A reviewing

court should not address the merits of an issue that has not been preserved for appeal. Blackshear,

385 S.W.3d at 590; Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010); Boston,

16 373 S.W.3d at 841. To preserve a complaint for appellate review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a)(1); see Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

Because appellant did not object to the trial court's failure to conduct the hearing at

trial or the admission of the outcry statements, he has failed to preserve this complaint for appellate

review. See Citizen v. State, No. 13-14-00379-CR, 2015 WL 513367, at *7 (Tex. App.—Corpus

Christi Feb. 5, 2015, no pet.) (mem. op., not designated for publication) ("A complaint regarding

the failure to hold a reliability hearing under article 38.072 is forfeited if it is not raised at trial

and if there is no objection to the outcry testimony."); Williams v. State, No. 02-10-00118-CR,

2011 WL 1601290, at *6 (Tex. App.—Fort Worth Apr. 28, 2011, pet. refd) (mem. op., not

designated for publication) ("[A] complaint regarding the lack of a reliability hearing under article

38.072 is forfeited if it is not raised at trial and if there is no objection to the outcry testimony."); see

also Moore v. State, 233 S.W.3d 32,37 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (concluding

appellant's substantial rights were not affected by trial court's failure to conduct article 38.072

hearing); Laredo v. State, 194 S.W.3d 637, 640-41 (Tex. App.—Houston [14th Dist.] 2006, pet.

refd) (concluding complaint as to outcry testimony not preserved for appellate review).

Accordingly, we overrule appellant's second point of error.

17 CONCLUSION

Having rejected appellant's claim ofineffective assistance ofcounsel and concluding

that appellant failed to preserve any alleged error relating to the trial court's failure to conduct a

reliability hearing pursuant to the outcry statute, we affirm the trial court's judgments ofconviction.

Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: August 26, 2015

Do Not Publish