Villalobos, Jesus ( 2015 )

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
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
JESUS VILLALOBOS,
Appellant/Petitioner
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
v.
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
following exchange:
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
18