Adrian Francisco Miranda v. State ( 2015 )

Affirmed and Memorandum Opinion filed April 23, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00091-CR
ADRIAN FRANCISCO MIRANDA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1400039
MEMORANDUM OPINION
A jury found appellant Adrian Francisco Miranda guilty of aggravated
sexual assault of a child by causing the sexual organ of a child to contact his sexual
organ. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii). The trial court sentenced
appellant to twenty-five years’ confinement. In seven issues, appellant contends
his trial counsel rendered ineffective assistance. We affirm.
I. BACKGROUND
Appellant is the brother of the complainant’s mother, so he is the
complainant’s uncle. Appellant was twenty-four years old at the time of trial in
January 2014. The complainant, who was ten years old at the time of trial, testified
about multiple occasions when appellant sexually assaulted her.
The complainant lived in an apartment with her mother (the Mother), step-
father, and younger brother when she was about five years old. She testified that
she would see appellant sometimes over the weekends, and he would usually just
visit during the day. He would “not really” spend the night. She described an
incident when she and her brother were playing in their room, and appellant took
her into a closet, pulled down her pants and underwear, pulled down his pants and
underwear, put her close to him, and “started putting his private area in mine and
started going back and forth.” She testified, “It felt bumpy and rough and hard.”
He told her not to tell anyone. She testified that he did this “a couple more times”
on different times and days, and it always happened in the closet.
When she was about six or seven years old, the complainant moved with the
Mother to a one-story house. She testified that appellant would do “the same
thing” with her in the restroom of this house “every night, like, around 1:00 or
2:00.” Appellant did this every night that he was there, but that was not very often,
so it happened “about a few times.” One time appellant “sat down on the toilet and
he actually had put me close and pushed me back and forth.” She testified that he
“put lotion on it,” and so it felt “smooth and bumpy.” She testified that his private
area was inside and touched her private area.
When she was seven or eight, the complainant moved with the Mother to a
two-story house. The complainant testified that appellant came over to that house
a lot, and she described two more instances of abuse. On one occasion, appellant
2
took the complainant to her bedroom and licked inside her private area. On
another occasion, appellant took her to a restroom, locked the doors, pulled down
her pants and underwear, pulled down his pants and underwear, turned off the
lights, laid down, put the complainant on top of him, and started pushing her up
and down. She testified that his private area went inside her private area.
The complainant’s stepmother (the Stepmother) testified as the outcry
witness. The complainant was visiting her father (the Father) and the Stepmother
on Saturday, March 24, 2012, and playing a video game with other children. In the
game, the player was a rabbit, and the game ended when a man caught the rabbit.
The Stepmother overheard the complainant say, “He’s about to dig in their
vagina.” The complainant was eight years old at the time. When the Father got
home from work, he and the Stepmother spoke with the complainant. The
Stepmother asked the complainant if she knew what a vagina was, and the
complainant said it was “something, you know, deep in her stomach.” When the
Stepmother asked why she had said “vagina,” the complainant “started crying
hysterically and at that point she just shut down and wouldn’t speak anymore at
all.” The complainant would not respond or make eye contact, and this lasted
about thirty minutes. The Stepmother and Father left the complainant alone in
their bedroom.
Eventually the complainant asked to speak with the Stepmother and said she
did not want to talk about vaginas anymore. The complainant started crying again.
The Stepmother said, “I don’t like talking about vaginas, you know . . . . But my
only concern is that every time you keep saying the word ‘vagina,’ you keep
crying.” The complainant started talking about things going on in her life, such as
the ongoing battle between the Mother and Father for custody of the complainant.
The Stepmother testified that “the custody thing was stressing her out,” including
3
that she was being told to keep things from one parent or the other. The
Stepmother repeatedly told the complainant that the Stepmother did not understand
what those things had to do with vaginas, and the Stepmother asked the
complainant why she was crying. As the conversation was coming to a close, the
complainant said, “My uncle.” The Stepmother asked, “What about your uncle?”
The complainant said, “He pulls down my pants . . . . And he touches me, and I
don’t like it.”
The Stepmother then told the Father what the complainant had said, and they
both talked with the complainant again. The complainant said, “My uncle Adrian
pulls down my pants and he takes his private and he puts it in mine and he goes
back and forth and he tells me this is what boys are going to do to me when I get
older.” The Father asked how long it had been going on, and the complainant said
since she was five or six years old. When asked the last time it had happened, the
complainant said the previous Wednesday.
After the conversation, the Stepmother and Father took the complainant to a
hospital for an examination. A nurse from the hospital testified that she did a
head-to-toe and genital exam of the complainant. The nurse testified that there
were no acute injuries. But the nurse also testified that the hymen does not break
every time there is penetration, and even if there are no visible signs of injury, that
does not mean there was never an injury because the tissue heals quickly. The
time period between the complainant’s last reported assault and the exam was
sufficient for any injuries in the genital area to heal. She testified it is very
uncommon to find visible physical trauma, and “nine times out of ten we don’t see
any injuries in children.”
Within a few days of the hospital examination, the complainant was
interviewed by a forensic interviewer, Lisa Holcomb, at the Children’s Assessment
4
Center. Holcomb testified that the complainant was able to provide sensory detail
and was never inconsistent with her details of what happened. Dr. Lawrence
Thompson testified about why children might wait to tell someone about abuse and
other issues such as how children can be groomed by abusers. He was the director
of therapy and psychological services at the Children’s Assessment Center.
Appellant’s trial counsel, Ronald Esposito, cross-examined each of these
witnesses and called four additional witnesses: appellant’s girlfriend (the
Girlfriend), the Mother, the Father, and appellant. His apparent trial strategy was
to show that the abuse was fabricated during a custody battle and to point out
inconsistencies or conflicts with the complainant’s testimony.
On cross-examination, the complainant testified that she saw appellant’s
private part, but she had told Holcomb that she never saw it. She also testified that
she did not know what the word “vagina” meant when she used it, and the
Stepmother had told the complainant what the word meant before the complainant
told about the sexual assault. The complainant testified that she was “kind of” mad
at the Mother because “she didn’t protect me.” The complainant testified that her
mother was “barely protective” but now had “learned her lesson.”
The Father testified that the complainant and her brother had been living
with the Mother since a custody suit in 2006. The Father filed for a modification
of custody in 2009, and the Mother and Father agreed that the complainant would
continue to live with the Mother, but the Father would have primary custody of the
complainant’s brother. The Father filed for another modification of custody in
2011; he was seeking primary custody of the complainant at the time of trial. At
the time the allegations of abuse came to light, the complainant had been living
with the Mother. But shortly after the complainant’s outcry, the complainant
5
began living primarily with the Father and Stepmother. The complainant
continued to live primarily with the Father and Stepmother at the time of trial.
Esposito elicited testimony from Dr. Thompson that he had seen cases of
false accusations at the Children’s Assessment Center. Thompson could think of
one case where a child used sensory terms but made a false allegation of abuse. He
testified that he had seen “a coaching case where parents were at odds with one
another,” and he had seen “cases where there has been coaching and custody
issues.”
The Mother testified that appellant lived with them in the apartment. She
testified further that appellant was never alone with the complainant when they
lived in the apartment; the Mother “never left them alone in the apartment.” The
Mother also testified that appellant had lived with them for several months at the
one-story house and then for three weeks at the two-story house. There had been
occasions at the one-story house when appellant had been alone with the
complainant. But the Mother did not notice anything unusual about the
complainant’s behavior around or toward appellant.
The Girlfriend testified that she lived with appellant and the complainant’s
family at both of the houses, and she slept in the same bed as appellant. She
testified that the kids were never with appellant. She testified that she was always
with him and he never left her sight. She testified that appellant was a heavy
sleeper, and she was a light sleeper. They would go to bed before the kids usually,
and he never woke up in the middle of the night.
Appellant was the last person to testify at trial. He denied the allegations in
general and denied a number of the specifics of the complainant’s testimony. He
testified that the complainant lied all the time. He testified that he lived in the
apartment for a couple of months and he lived in another house with the
6
complainant for four or five months. He testified that he was never alone with the
complainant at the apartment or the two-story house, but he was alone with the
complainant on more than one occasion while they lived at the one-story house.
On cross-examination, appellant acknowledged that he had a prior conviction for
aggravated assault, and he had served two years in prison. He also served 180 days
concurrently for the possession of a prohibited substance while in prison.
The jury found appellant guilty, and the trial court assessed punishment at
twenty-five years’ confinement. No motion for new trial was filed. This appeal
followed.
II. INEFFECTIVE ASSISTANCE CLAIMS
In seven issues, appellant contends Esposito rendered ineffective assistance
of counsel. First we review general principles related to ineffective assistance
claims. Then we address each of appellant’s contentions in turn.
A. General Principles
To prevail on an ineffective assistance claim, an appellant must show that
(1) counsel’s performance was deficient because it fell below an objective standard
of reasonableness; and (2) counsel’s deficiency caused the appellant prejudice—
there is a probability sufficient to undermine confidence in the outcome that but for
counsel’s errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310 S.W.3d 890,
892–93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a
preponderance of the evidence; failure to demonstrate either deficient performance
or prejudice will defeat a claim of ineffectiveness. Perez, 310 S.W.3d at 893.
When one of the prongs is dispositive, we need address only that prong on appeal.
7
Washington v. State, 417 S.W.3d 713, 724–25 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d).
Although an appellant may claim ineffective assistance of counsel for the
first time on direct appeal, as here, the record in such a case often will not be
sufficient to overcome the presumption that counsel’s conduct was reasonable and
professional. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008). In
the face of a silent record, we will not find deficient performance unless counsel’s
conduct is so outrageous that no competent attorney would have engaged in it.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In assessing
whether counsel rendered effective assistance, we must review the totality of the
representation and the circumstances of each case without the benefit of hindsight.
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Although a single
error will not typically result in a finding of ineffective assistance, an egregious
error may satisfy the Strickland standard on its own. Id.
B. Issue 1: Voir Dire
In his first issue, appellant contends that Esposito failed to adequately voir
dire the venire panel and prepare them for the defense’s theory that the
complainant was coached by the Father and Stepmother to prevail in a custody
dispute. Appellant admits that Esposito in fact questioned the venire about custody
disputes and whether children could be led to believe facts that were untrue. We
have reviewed the voir dire proceedings, and indeed, Esposito asked the jury
questions directly related to the defensive theory. But appellant now contends that
Esposito should have engaged in a more “detailed line of questioning” and should
have more “thoroughly” questioned the venire.
We hold that Esposito’s questioning was not so outrageous that no
competent attorney would have engaged in it. There could be a reasonable trial
8
strategy for asking the questions that he did and not asking ones that another
competent attorney might have asked. See Goodspeed, 187 S.W.3d at 392–94 (no
deficient performance when trial counsel did not ask any questions during voir
dire); Harrison v. State, 333 S.W.3d 810, 814 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d) (on a silent record, “failure to ask questions appellant’s counsel
believed to be important does not mean that counsel’s conduct was deficient; nor
does the lack of such questioning amount to behavior that is so outrageous, no
competent attorney would have engaged in it”). Appellant has failed to prove
deficient performance.
Appellant’s first issue is overruled.
C. Issue 2: Preparation of the Girlfriend to Testify at Trial
In his second issue, appellant contends Esposito failed to prepare the
Girlfriend to testify, which resulted in the jury learning that appellant had
previously been incarcerated for a prior conviction. Appellant bases the lack-of-
preparation allegation on the mere fact that the Girlfriend revealed appellant’s prior
incarceration in response to one of Esposito’s questions, although appellant admits
that the Girlfriend provided favorable testimony on appellant’s behalf.1
We will not presume on a silent record that Esposito failed to prepare a
defense witness to testify merely because the witness alluded to inadmissible
evidence while responding to a question from counsel who did not explicitly elicit
the inadmissible evidence. See, e.g., Lopez, 343 S.W.3d at 142 (“In order for an
1
The complained-of colloquy occurred as follows:
Q. All right. Have you in the recent past lived with him?
A. Yes, sir.
Q. And when did that begin to occur?
A. Whenever he got out the—out of jail the last time.
9
However, regardless of whether counsel performed deficiently, we hold that
appellant has not demonstrated prejudice. Courts holding that defendants suffered
prejudice in analogous cases have relied on the following factors: (1) credibility
was integral to the defense; (2) presentation of the extraneous offense evidence
was extensive; and (3) the State discussed the extraneous offense evidence during
closing argument. See Garcia, 308 S.W.3d at 66–67, 75–76 (defendant suffered
prejudice because his only viable defense was dependent on the strength of his own
credibility as compared to the complainant’s credibility, the State called another
alleged sexual assault victim to testify about the extraneous offense with
significant detail, and the State emphasized the extraneous offense during closing
argument); Robertson v. State, 214 S.W.3d 665, 667–68 (Tex. App.—Waco 2007,
no pet.) (defendant suffered prejudice because credibility was critical, there was a
considerable amount of evidence related to prior convictions, and the State
emphasized the prior convictions during closing argument); see also Ex parte
Menchaca, 854 S.W.2d 128, 131–33 (Tex. Crim. App. 1993) (defendant suffered
prejudice because the determination of guilt rested entirely on the credibility of the
witnesses and the State mentioned the prior conviction during closing argument to
undermine defendant’s credibility); Davis v. State, 413 S.W.3d 816, 827, 837–38
(Tex. App.—Austin 2013, pet. ref’d) (defendant suffered prejudice when the
evidence of guilt was largely circumstantial, the extraneous offense evidence was a
significant portion and central theme of the case against him, and the State
reinforced the harmful effect of this evidence during closing argument). In
contrast, courts have found no prejudice when there was significant evidence of
guilt and the State did not emphasize the inadmissible evidence. See Samarripas v.
State, 438 S.W.3d 673, 676 (Tex. App.—San Antonio 2014, no pet.) (defendant
failed to prove prejudice because there was overwhelming evidence of guilt and
the State did not rely on the extraneous offenses to make its case or in closing
12
This brief questioning, coupled with Esposito’s on-the-record admission that
he was aware of the prior charge, very well could amount to deficient performance
under Strickland because appellant’s defense rested almost entirely on his
credibility versus the complainant’s credibility. See Robertson v. State, 187
S.W.3d 475, 484 (Tex. Crim. App. 2006) (collecting cases and holding that
counsel was deficient for eliciting inadmissible evidence of appellant’s two prior
convictions even though counsel testified that his trial strategy was to show that
appellant was not a liar; reasoning that in cases like this where the appellant’s
defense “rested almost entirely on his credibility, the weight of authority supports a
holding that appellant’s trial lawyer performed deficiently under the first prong of
Strickland by allowing the jury to hear prejudicial and clearly inadmissible
evidence because this evidence could serve no strategic value including
demonstrating that appellant is not a liar”); Garcia v. State, 308 S.W.3d 62, 68
(Tex. App.—San Antonio 2009, no pet.) (holding that trial counsel was deficient
for opening the door to inadmissible evidence of a prior sexual assault in an
aggravated-sexual-assault case when his defense rested almost entirely on his
credibility versus the complainant’s credibility); see also Anaya v. State, 988
S.W.2d 823, 826 (Tex. App.—Amarillo 1999, no pet.) (holding that counsel was
deficient for opening the door to inadmissible prior convictions and unadjudicated
offenses despite silent record on counsel’s trial strategy). 3
3
Although opening the door to inadmissible extraneous offense evidence may serve a
legitimate trial strategy under the particular circumstances of a case, we glean no such
considerations from this record. See Williams v. State, 301 S.W.3d 675, 686–87 (Tex. Crim.
App. 2009) (counsel’s opening door to extraneous murder served to show bias of witness who
collected a Crime Stoppers reward); Jensen v. State, 66 S.W.3d 528, 544 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref’d) (in an aggravated-sexual-assault-of-a-child prosecution, counsel’s
opening door to the defendant’s abuse of the victim’s mother, who testified against him, served
to show that she might harbor bias or have a reason to fabricate the outcry statement).
11
However, regardless of whether counsel performed deficiently, we hold that
appellant has not demonstrated prejudice. Courts holding that defendants suffered
prejudice in analogous cases have relied on the following factors: (1) credibility
was integral to the defense; (2) presentation of the extraneous offense evidence
was extensive; and (3) the State discussed the extraneous offense evidence during
closing argument. See Garcia, 308 S.W.3d at 66–67, 75–76 (defendant suffered
prejudice because his only viable defense was dependent on the strength of his own
credibility as compared to the complainant’s credibility, the State called another
alleged sexual assault victim to testify about the extraneous offense with
significant detail, and the State emphasized the extraneous offense during closing
argument); Robertson v. State, 214 S.W.3d 665, 667–68 (Tex. App.—Waco 2007,
no pet.) (defendant suffered prejudice because credibility was critical, there was a
considerable amount of evidence related to prior convictions, and the State
emphasized the prior convictions during closing argument); see also Ex parte
Menchaca, 854 S.W.2d 128, 131–33 (Tex. Crim. App. 1993) (defendant suffered
prejudice because the determination of guilt rested entirely on the credibility of the
witnesses and the State mentioned the prior conviction during closing argument to
undermine defendant’s credibility); Davis v. State, 413 S.W.3d 816, 827, 837–38
(Tex. App.—Austin 2013, pet. ref’d) (defendant suffered prejudice when the
evidence of guilt was largely circumstantial, the extraneous offense evidence was a
significant portion and central theme of the case against him, and the State
reinforced the harmful effect of this evidence during closing argument). In
contrast, courts have found no prejudice when there was significant evidence of
guilt and the State did not emphasize the inadmissible evidence. See Samarripas v.
State, 438 S.W.3d 673, 676 (Tex. App.—San Antonio 2014, no pet.) (defendant
failed to prove prejudice because there was overwhelming evidence of guilt and
the State did not rely on the extraneous offenses to make its case or in closing
12
arguments); Agbogwe v. State, 414 S.W.3d 820, 834–35 (Tex. App.—Houston [1st
Dist.] 2013, no pet.) (defendant failed to prove prejudice because this was not a
case in which the primary testifying witnesses were the defendant and the
complainant, there were multiple witnesses including a disinterested one, and the
State specifically told the jury during closing argument that the case was not about
the extraneous offense and that the jury should not focus on it).
Appellant’s credibility was an integral part of his defense that the sexual
assault never happened, and the evidence of guilt was not overwhelming.
However, the evidence of the extraneous offense was extremely brief. It consisted
of a single question and answer whereby appellant admitted to being charged with
a sex crime. No underlying details of the extraneous offense were presented. The
State did not cross-examine appellant about the matter, nor did the State bring forth
a rebuttal witness. During closing arguments, the State argued that appellant “lied”
on the stand, but the State did not mention the unadjudicated extraneous offense.
Instead, the State referred to appellant’s testimony that his memory was “not that
good” and he could not “for sure” tell the jury that he was not alone with the
complainant while they lived in the apartment, although he had testified earlier that
he was never alone with her in the apartment. Nothing else in the record indicates
the jury considered the extraneous offense. Thus, unlike in many of the cases cited
above, the issue did not permeate the trial.
Further, although the extraneous offense evidence may have undermined
appellant’s credibility to some degree, appellant’s credibility had already been
undermined through evidence of his other, admissible, prior convictions. Esposito
opened the door to the inadmissible unadjudicated offense in the context of
attempting to explain circumstances of the admissible offense of aggravated
assault—in particular, the aggravated assault was not against a child and was not a
13
sexual assault. The State also had undermined appellant’s credibility through the
testimony of the Mother. She testified that when the allegations came to light, she
asked appellant to leave her house because she supported her daughter, and she no
longer maintained a relationship with appellant. A reasonable inference from this
testimony is that she did not believe appellant’s denial of the allegations.
After considering the entire record, including the evidence and argument of
counsel, we hold that appellant has failed to show that there is a probability
sufficient to undermine confidence in the outcome that but for Esposito’s potential
error, the result of the proceeding would have been different.
Appellant’s third issue is overruled.
E. Issue 4: Extraneous Offense Burden-of-Proof Instruction
In his fourth issue, appellant contends Esposito should have asked the trial
court to instruct the jury on the burden of proof for extraneous offenses at the time
the evidence was admitted and in the jury charge. We hold that appellant has not
shown that Esposito was deficient.
Appellant was not entitled to a burden-of-proof instruction at the time the
evidence of extraneous offenses was admitted. See Delgado v. State, 235 S.W.3d
244, 251 (Tex. Crim. App. 2007). As such, Esposito was not deficient for failing
to request the instruction. See Ex parte Nailor, 149 S.W.3d 125, 133–34 (Tex.
Crim. App. 2004) (counsel not deficient for failing to request a jury instruction
when the defendant was not entitled to it).
And generally, courts have recognized that it may be a legitimate trial
strategy to not request a burden-of-proof instruction in the charge because the
instruction would draw extra attention to the extraneous offenses. See, e.g.,
McNeil v. State, 452 S.W.3d 408, 415 (Tex. App.—Houston [1st Dist.] 2014, pet.
14
filed); Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d). Although it is possible that Esposito’s failure to request such an
instruction was not the result of trial strategy, we cannot speculate about his
reasoning with a silent record. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.
Crim. App. 2001) (reasoning that trial counsel’s failure to request a reasonable
doubt instruction for extraneous offenses was not deficient performance on a silent
record, but it was deficient performance when counsel admitted the failure was
simply an oversight and not the result of trial strategy). The record is silent about
counsel’s reason for not requesting the reasonable doubt instruction. Appellant has
failed to prove deficient performance.
Appellant’s fourth issue is overruled.
F. Issue 5: Extraneous Offense Limiting Instruction
In his fifth issue, appellant contends Esposito failed to ask for a limiting
instruction as soon as evidence of the extraneous offenses was admitted. We hold
that appellant has not shown that Esposito was deficient. See, e.g., Delgado, 235
S.W.3d at 250 (“Texas courts have frequently stated that the decision of whether to
request a limiting instruction concerning the proper use of certain evidence,
including extraneous offenses, may be a matter of trial strategy.”).
Appellant’s fifth issue is overruled.
G. Issue 6: Investigation of Prior Allegation of Abuse
In his sixth issue, appellant contends Esposito failed to investigate and
discover previous allegations of the complainant’s abuse by the Father and
Stepmother. In particular, appellant cites to State’s Exhibit 15, which includes
statements in the complainant’s medical records from 2010 when appellant was
incarcerated and the complainant had a urinary tract infection. Appellant suggests
15
that several of the statements indicate that the Father and Stepmother were
concerned about possible sexual abuse, and this would have been evidence in
support of Esposito’s theory that the complainant was coached to fabricate the
allegations. 4 Appellant contends, “There can be no valid trial strategy for failing to
bring this to the jury’s attention.”
We will not speculate on a silent record that Esposito failed to investigate
this line of defense; it is entirely possible he considered the defensive evidence and
decided to not pursue it based on a reasonable trial strategy. See, e.g., Rylander v.
State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (refusing to speculate
about counsel’s trial strategy and find deficient performance on a silent record
based on counsel’s failure to adduce additional evidence in support of appellant’s
sole defense and to prepare and investigate witnesses, among other things).
Appellant does not cite any authority in support of this issue, and we have found
none. See Tex. R. App. P. 38.1(i) (argument must contain citations to authorities).
Appellant has failed to prove deficient performance.
Appellant’s sixth issue is overruled.
H. Issue 7: Cumulative Error
In his seventh issue, appellant contends that the cumulative effect of
Esposito’s errors resulted in a constructive denial of the effective assistance of
counsel. Appellant correctly notes that we must look to the totality of the
representation, rather than isolated acts or omissions, to determine whether
appellant received effective assistance of counsel. See, e.g., Ex parte Bryant, 448
4
The shorthanded statements include: (1) “Spoke to step-mother who stated that they are
suspecting that child has been touched”; and (2) “Dad needs to speak to triage nurse again pls
Regarding /// dad has concers and ? Regarding// poss sexual abuse on pt.”
16
S.W.3d 29, 39 (Tex. Crim. App. 2014); Wilkerson v. State, 726 S.W.2d 542, 548
(Tex. Crim. App. 1986).
However, even assuming that Esposito’s representation was deficient under
appellant’s third issue, we have rejected each of appellant’s other contentions that
Esposito’s conduct could be considered deficient on direct appeal with a silent
record. And, we have determined that appellant did not prove prejudice for
appellant’s third issue above. Ultimately, we have reviewed the totality of the
representation and note that Esposito cross-examined witnesses, presented
numerous defense witnesses, and held the State to its burden to prove appellant’s
guilt beyond a reasonable doubt. Based on this record, we cannot hold that
appellant was denied effective assistance of counsel after reviewing the totality of
the representation.
Appellant’s seventh issue is overruled.
III. CONCLUSION
Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).
17