                              NUMBER 13-12-00333-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

FRED LONGORIA,                                                                Appellant,


                                             v.

THE STATE OF TEXAS,                                                            Appellee.


                   On appeal from the 130th District Court of
                          Matagorda County, Texas.


                          MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza and Perkes
               Memorandum Opinion by Justice Garza
      A jury convicted appellant, Fred Longoria, of aggravated sexual assault of a

child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (a)(1)(B)(i), (a)(2)(B),

(e) (West Supp. 2011).1 The jury assessed punishment at life in prison and a $10,000


      1
          Section 22.021 of the penal code was amended in 2011, but those amendments are not
fine. By seven issues which we reorder as four, appellant contends: (1) the evidence

was insufficient to support his conviction; (2) there was a fatal variance between the

alleged offense as described in the jury charge and the evidence presented at trial; (3)

he was denied effective assistance of counsel; and (4) the trial court abused its

discretion in failing to grant him a new punishment hearing. We affirm.

                                             I.      BACKGROUND
1. E.L.

        E.L., the alleged victim in this case, was twenty-one years old when she testified

at trial. She testified that her mother, A.L., and father split up when she was six years

old.2   E.L. and her mother and siblings were living with David, one of her father’s

cousins. In 2003, when E.L. was twelve, appellant—also a cousin of E.L.’s father—was

living with Jaclyn, a second cousin to A.L. Around this time, E.L. began using drugs and

alcohol and frequently fought with A.L.

        In July 2003, E.L.’s grandfather died. After the funeral, E.L. spent the night at

appellant and Jaclyn’s home. While Jaclyn was busy bathing her children, E.L. was

playing on the computer. Appellant pulled a chair up next to her, put his hand on her

leg, and asked if she was a virgin. E.L. said “yes.” 3 Later that night, E.L. was laying on


applicable here, and we cite to the current version of the statute. See TEX. PENAL CODE ANN. § 22.021
(West Supp. 2011).
        2
          The familial relationships in this case are complicated. When E.L.’s parents split up, her father
was in jail, and her mother began living with her father’s cousin, David. David’s son, D.J., who was six
years older than E.L., was also a member of the household. Shortly after E.L. and her mother moved in,
D.J. began sexually abusing E.L. by exposing himself and forcing her to touch him inappropriately. After
approximately two years, a relative saw D.J. rubbing up against E.L. and reported the incident. Following
an investigation by Child Protective Services (CPS), D.J. was removed from the home temporarily. He
returned, however, when E.L. was about ten, and the sexual contact with E.L. continued. The sexual
abuse eventually escalated into oral sex and intercourse and continued until E.L. was about fifteen years
old. D.J. also introduced E.L. to marijuana and cocaine when she was about eleven or twelve.
        3
            E.L. had sexual intercourse with D.J. sometime after July 2003.


                                                      2
the couch where she planned to spend the night. Appellant sat on the end of the couch,

put his hand under E.L.’s panties, and digitally penetrated her vagina. Appellant then

stopped and said he would continue later. He was in and out of the house that night.

Much later, appellant woke E.L. up and told her to follow him outside. He put her inside

his truck, pulled down her panties and his pants, and partially penetrated her. Appellant

was unable to fully penetrate E.L.’s vagina. E.L. later saw that she had blood in her

panties. E.L. did not tell anyone about the incident.

         A couple of years later, appellant was having an affair with A.L. Eventually,

appellant and Jaclyn separated and appellant moved to his mother’s house. For a

while, A.L. was involved with both appellant and David. During this time, E.L. and her

siblings were sent to live with their father. When they came back to live with A.L., they

sometimes stayed at their grandparents’ home because David had burned down A.L.’s

apartment. A.L. was living with appellant at his mother’s house.4 E.L. and her siblings

sometimes slept together in the den at appellant’s mother’s house.                       On several

occasions, appellant came into the den, woke E.L. up, and “force[d] himself inside” her.

E.L. was around fourteen at this time. Appellant was providing E.L. with drugs and

alcohol.       E.L. had been placed on juvenile probation for assaulting A.L.               Appellant

warned E.L. that if she told anyone about the sexual abuse, he would claim that their

sexual relationship was consensual and no one would believe her. He also told her that

if she told anyone, no one would want her because she was “dirty” and “nasty.”

         While she was on juvenile probation, E.L. continued to use drugs. As a result,

her probation officer offered her a choice: accept a six-month assignment at Shoreline,


         4
             A.L. was married to E.L’s father, David, and appellant. All three men were cousins to each
other.

                                                    3
Inc., a residential rehabilitation facility in Taft, Texas; or accept revocation of her

probation and assignment at the Texas Youth Commission for a year.           E.L. chose

assignment at Shoreline.

      At Shoreline, she participated in group therapy and classes on drugs, sexual

abuse, physical abuse, and pregnancy. Prior to her residency at Shoreline, E.L. had not

told anyone about the sexual abuse by appellant. Over time, E.L. developed a trusting

relationship with Erin Wynn, one of her counselors. Eventually, E.L. told Wynn about

the sexual encounters with D.J. and with appellant. Wynn arranged a meeting between

herself, E.L., and A.L. After being told of the sexual abuse, A.L.’s attitude toward E.L.

was cold and uncaring. E.L. interpreted her mother’s reaction as confirmation of what

D.J. and appellant had told her: that no one would believe her and that the sexual

encounters were her fault.

      Although E.L.’s assignment at Shoreline was for six months, she stayed for nine

months because she did not want to return home with A.L. and appellant. Eventually,

she returned home. When appellant and A.L. tried to confront her, she called her

father, and he came and picked her up. E.L. believed that her father learned of the

abuse from Child Protective Services (CPS). After picking her up, E.L.’s father took her

to the sheriff’s department in Bay City, Texas, where she gave a statement to an

investigator, Charlotte Brown. E.L. stayed with her father in Houston for six months.

Later, E.L. and her brother joined A.L. in Nebraska.

      On cross-examination, appellant’s counsel emphasized that E.L. skipped school

frequently, used drugs, and assaulted A.L. on numerous occasions.               He also




                                            4
emphasized that E.L. did not report the sexual abuse by appellant to a teacher or other

family members and did not seek help from the police.

2. Erin Wynn

       Erin Wynn testified that in 2006 and 2007, she was E.L.’s counselor at Shoreline.

Wynn stated that when admitted to Shoreline, E.L. had serious substance abuse

problems and had emotional and behavioral problems. Wynn stated that after she

learned of the sexual abuse by appellant, she contacted CPS and set up a meeting with

A.L. Wynn described A.L.’s reaction at the meeting as “very disturbing” because she

was “uninterested” and “uncaring” toward E.L.

3. Charlotte Brown

       Charlotte Brown, an investigator with the Matagorda County Sheriff’s

Department, testified that she became involved in the case when she received a referral

from CPS in July 2007.      E.L. was sixteen years old when Brown met her. Brown

interviewed E.L. and took her statement. Brown testified that, at the time of the alleged

offense, E.L. was twelve years old or younger. Brown testified that E.L. told her of the

sexual assault by appellant that occurred in July 2003, the night of E.L.’s grandfather’s

funeral. On that date, E.L. was twelve years old and appellant was thirty-one years old.

Brown confirmed that E.L. told her that appellant was unable to fit his penis all the way

into her vagina.   Brown also testified that E.L. told her of the sexual contact with

appellant in 2005 when appellant and A.L. were living with his parents. During that

time, E.L. told Brown that appellant engaged in oral sex and intercourse with her.

       On redirect examination, Brown testified that between 2007, when appellant was

arrested, and 2011, appellant had fled the jurisdiction.



                                             5
4. Jaclyn

       Jaclyn testified that she and A.L. are second cousins. Jaclyn began living with

appellant in 2000 when she was eighteen and appellant was twenty-eight. Jaclyn’s

relationship with A.L. was “rocky” because A.L. was involved with appellant both before

and after Jaclyn’s relationship with appellant.

       On the night following the funeral when E.L. spent the night at her home,

appellant was “doing his usual smoking and drinking thing.” Jaclyn woke up around

2:00 or 3:00 in the morning and found appellant coming back into the house. He said

he had been outside smoking a cigarette. Jaclyn did not know about the sexual abuse

until she was interviewed by Brown.       Jaclyn eventually ended her relationship with

appellant around 2004; they were never formally married.

5. A.L.

       A.L. stated that, in 2007, when she gave a statement to Brown, she was still

married to appellant and still living with him.    Appellant drove her to the sheriff’s

department. After she gave the statement, appellant was “kind of hysterical” and “was

hitting [her] over the head with his cell phone asking [her] what did [she] say, what did

[she] say.” A.L. told him she had said that she did not know what was going on. A.L.

said she was “scared of [appellant]” and “scared for [herself].” A.L. stated that she had

been married to three men—E.L.’s father, David, and appellant—all of whom were

cousins of each other. She had a relationship with appellant both before and after his

relationship with Jaclyn, who is her cousin. She admitted that the family relationships



                                             6
were “a screwed up situation.” She also admitted that she had used drugs and was “a

horrible mother.” A.L. said that E.L. had never asked her to leave appellant because

E.L. knew that A.L. loved appellant.      When A.L. confronted appellant about E.L.’s

allegations of abuse, he did not deny it, but said that E.L. had “[come] on to him.” A.L.

did not provide this information to anyone. During the time that appellant was a fugitive

from the court, A.L. was not involved with him. Later, when A.L. was in Nebraska, she

picked appellant up at the bus station. He was on drugs. He said that he “wasn’t the

only one” that had assaulted E.L. Appellant was angry and stabbed A.L. in the leg with

a knife; she also cut her hand reaching for the knife. A.L. had not been in contact with

appellant for about three years but was still married to him. When asked, “Would it be

fair to say that back during those times, you would have said anything to the police that

he wanted you to?”, A.L. said, “Yes, ma’am.”

       On cross-examination, appellant’s counsel asked if A.L. remembered telling

Brown that E.L. told her that she had made up the allegations of abuse by appellant.

A.L. said she did not remember saying that. A.L. stated that some of what she had said

in her statement to Brown was false and explained that she had lied because she was

afraid of appellant and was trying to protect herself.

6. Susan Maxwell

       Susan Maxwell, an investigator with the Matagorda County district attorney’s

office, testified that appellant was arrested in January 2011. He had been a fugitive

since 2008.

                             II.    SUFFICIENCY OF THE EVIDENCE

   A. Standard of Review and Applicable Law



                                             7
       By two issues, appellant argues that: (1) the evidence was insufficient to support

his conviction; and (2) because the State failed to prove that his sexual organ

penetrated E.L.’s sexual organ, there was a “fatal variance” between the indictment and

the evidence presented. We address these issues together.

       We review claims of evidentiary insufficiency under “a rigorous and proper

application of the Jackson standard of review.” Brooks v. State, 323 S.W.3d 893, 906–

07, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)).   Under the Jackson standard, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d at 898–99 (characterizing the

Jackson standard as: “Considering all of the evidence in the light most favorable to the

verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.”). The

fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim.

App. 2008)).    Reconciliation of conflicts in the evidence is within the fact-finder's

exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)).

We must resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

       Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge, not the charge actually given. Byrd v.

State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011); Malik v. State, 953 S.W.W2d 234,



                                            8
240 (Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was

tried. Byrd, 336 S.W.3d at 246; Malik, 953 S.W.2d at 240. Measuring the sufficiency of

the evidence against the hypothetically correct jury charge ensures that a defendant will

be acquitted when the State actually fails to meet its burden of proof rather than when

the State includes a simple error in the indictment or jury charge. Malik, 953 S.W.2d at

240. The law as authorized by the indictment means the statutory elements of the

charged offense as modified by the factual details and legal theories contained in the

charging instrument. See Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App.

2000).

         A variance arises when there is a difference between the allegations in the

indictment and the evidence presented at trial. Gollihar v. State, 46 S.W.3d 243, 257

(Tex. Crim. App. 2001). An immaterial variance between the indictment and the proof at

trial is disregarded in a sufficiency of the evidence review. Id. A material variance,

however, is fatal if it prejudices the defendant's substantial rights.       Id.   When

determining materiality, the court “must determine whether the indictment, as written,

informed the defendant of the charge against him sufficiently to allow him to prepare an

adequate defense at trial, and whether prosecution under the deficiently drafted

indictment would subject the defendant to the risk of being prosecuted later for the

same crime.” Id. A defendant bears the burden of showing prejudice. Santana v.

State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).          The court will disregard the

variance if the defendant fails to explain how it prevented him from preparing an



                                           9
adequate defense or how he could be tried again under the same facts. Hilburn v.

State, 312 S.W.3d 169, 175 (Tex. App.—Fort Worth 2010, no pet.).

   B. Discussion

       Appellant argues that the evidence is insufficient because: (1) there was no DNA

or other physical evidence; (2) there were no eyewitnesses to the abuse; (3) he denies

the allegations; (4) E.L.’s outcry occurred years after the alleged abuse; (5) E.L.

recanted the allegations of sexual abuse “to multiple third-parties”; and (6) E.L. lacked

credibility because she had been abused before her encounters with appellant, had

used drugs, and had assaulted her mother. With regard to the variance claim, appellant

argues that the State failed to prove that appellant’s penis penetrated E.L.’s vagina

because: (1) “the DA never clarified that the Appellant actually used his sex organ to

enter [E.L.]” and (2) when E.L. testified that appellant “force[d] himself inside of [her],”

she did not specify that she meant his sexual organ.

       Appellant’s arguments are without merit. The amended indictment stated that

appellant “on or about the 13th day of July, A.D. 2003 . . . did then and there,

intentionally or knowingly cause the contact and penetration of the sexual organ of

[E.L.], a child who was then and there younger than 14 years of age and not the spouse

of the defendant, by defendant’s sexual organ.” Under a hypothetically correct jury

charge, the State was required to prove beyond a reasonable doubt that appellant (1)

intentionally or knowingly (2) penetrated E.L.’s sexual organ with his sexual organ and

(3) E.L. was then younger than 14 years of age.          See TEX. PENAL CODE ANN. §§

22.021(a)(1)(B)(i), (2)(B).

       It is well settled law that the testimony of a child sexual abuse victim alone is



                                            10
sufficient to support a conviction. See TEX.CODE CRIM. PROC. ANN. art. 38.07 (West

Supp. 2011); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App.2005); Hiatt v.

State, 319 S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref’d).                   “[T]he

prosecution is not required to introduce any medical reports or other physical evidence

to corroborate a child victim's testimony during trial.” Hiatt, 319 S.W.3d at 121.

       E.L. testified that on July 14, 2003, when she was twelve years old, appellant

pulled down her pants and “tried to force himself inside” her. E.L. stated that appellant

was not able to fully penetrate her, but that he did partially penetrate her. She also

testified that the July 2003 incident with appellant was the first time she had

“intercourse” and that after the incident, she saw blood on her panties.

       The court of criminal appeals has stated that:

       penetration occurs when there is “tactile contact beneath the fold of
       complainant's external genitalia,” and that it is not inaccurate “to describe
       [conduct] as a penetration, so long as [the] contact with [the complainant's]
       anatomy could reasonably be regarded by ordinary English speakers as
       more intrusive than contact with her outer vaginal lips.” In Vernon, the
       defendant was charged with and convicted of aggravated sexual assault
       of his thirteen-year-old step-daughter. The Second Court of Appeals
       affirmed the defendant's conviction, in spite of testimony by the
       complainant that the defendant had only touched the “outside” of her
       vaginal area. In affirming the court of appeals, this Court noted that the
       statute does not criminalize penetration of the vagina, but the broader
       conduct of “penetration of the . . . sexual organ” of the child. We went
       further to say that “pushing aside and reaching beneath a natural fold of
       skin into an area of the body not usually exposed to view, even in
       nakedness, is a significant intrusion beyond mere external contact[,]” and
       therefore constitutes penetration in the context of sexual assault.

Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012) (internal citations and

quotations omitted); see Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).

       The section of appellant’s brief discussing the sufficiency of the evidence

contains the following sentence:        “There was an extremely delayed outcry, in

                                            11
conjunction with numerous denials of sexual abuse, and recantations of said sexual

abuse by [E.L.] to multiple third-parties (Testimony at Motion for New Trial hearing).”

No other citation to the record is provided. We have searched the record of the hearing

on appellant’s motion for new trial in vain for any support for this statement. At the

hearing, appellant’s counsel introduced E.L.’s admission records to Shoreline, which

included Defense Exhibits 1 and 3. Defense Exhibit 1 includes the question: “Describe

any history of sexual or physical abuse that would place the client at greater

psychological risk during a restraint[,]” followed by the hand-written notation, “denies.”

Defense Exhibit 3 contains the question, “[h]ave you ever been forced to have sex

against your will?” The box marked “no” is checked. Both forms are dated “8/31/06,”

the date of E.L.’s admission to Shoreline. At the hearing, on cross-examination of one

of appellant’s lawyers, the prosecutor made the point:

         Q [by prosecutor]:       Do you recall that it was sometime after she—
                                  [E.L.] had been at Shoreline that [E.L.] finally
                                  outcried about any sexual abuse?

         A [appellant’s counsel]: Yes. I think that—yes, I do remember that was—
                                  that did come out that way.

         Q:                       So, it’s not surprising when you look at these
                                  documents that up until that outcry, there was
                                  denial of any abuse by [E.L.]?

         A:                       That seems to be a logical way to look at it.

Apparently, these are the “numerous denials of sexual abuse” referenced in appellant’s

brief.

         With regard to the “recantations of said sexual abuse by [E.L],” we have found no

recantation by E.L. We assume that counsel may be referring to A.L.’s July 18, 2007

witness statement, in which she told investigators that E.L. said she had “made up the

                                             12
story” about appellant and that E.L. had told her grandmother (A.L.’s mother) that she

had lied. However, as noted above, A.L. testified emphatically at trial that she lied in

making that statement.            On cross-examination by appellant’s counsel, A.L. was

specifically asked about the statement that “[E.L. said] that she had made up the story

about [appellant].” A.L. responded, “I made that statement, and that’s a lie.” She

clarified, “I’m saying I wrote this statement out of fear. Half of it or more than half of it is

not true.” Therefore, A.L.’s statements in her witness statement—that she disavowed at

trial as “lies”—cannot reasonably be characterized as “recantations of said sexual

abuse by E.L,” as stated in appellant’s brief. Accordingly, we find that the statement in

appellant’s brief is misleading and misrepresents the record.

       Viewing the evidence in the light most favorable to the jury's verdict, we conclude

that E.L.’s testimony was legally sufficient for a rational fact finder to find that appellant’s

sexual organ penetrated her sexual organ. The jury, as the trier of fact, was free to

draw reasonable inferences from E.L.’s testimony. See Hooper v. State, 214 S.W.3d 9,

15–16 (Tex. Crim. App. 2007) (stating the jury, as the trier of fact, may draw reasonable

inferences from the facts). It is the exclusive province of the jury to reconcile conflicts in

the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

       With respect to appellant’s variance claim, we also conclude that, because the

jury could reasonably infer from E.L.’s testimony that appellant’s penis penetrated her

sexual organ, there was no difference between the allegations in the indictment and the

evidence presented at trial. See Gollihar, 46 S.W.3d at 257.         We overrule appellant’s

first and second issues.

                           III.     INEFFECTIVE ASSISTANCE OF COUNSEL



                                               13
         By his third issue, appellant contends he was denied effective assistance of

counsel. By four sub-issues, appellant contends his counsel was ineffective by: (1)

failing to investigate impeachment information; (2) failing to investigate and present an

adequate case at the punishment phase; (3) failing to strike a jury member who knew

and worked with one of the State’s witnesses; and (4) failing to object or request limiting

instructions to inadmissible testimony.5

    A.       Standard of Review

         We review the denial of a motion for new trial under an abuse of discretion

standard.      See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004),

superseded in part on other grounds by TEX. R. APP. P. 21.8(b); Lewis v. State, 911

S.W.2d 1, 7 (Tex. Crim. App. 1995); Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—

Corpus Christi 2011, pet. ref'd); Shanklin v. State, 190 S .W.3d 154, 158 (Tex. App.—

Houston [1st Dist.] 2005), pet. dism'd, 211 S.W.3d 315 (Tex. Crim. App. 2007); State v.

Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998, pet. ref'd). A trial court abuses its

discretion by denying a motion for new trial only when its decision is arbitrary or

unreasonable, or when no reasonable view of the record could support the trial court's

ruling. Charles, 146 S.W.3d at 208; Cueva, 339 S.W.3d at 857; Escobar v. State, 227

S.W.3d 123, 126 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). The ruling of the trial

court is presumed to be correct, and it is the appellant's burden to establish the

contrary. Jensen v. State, 66 S.W.3d 528, 545 (Tex. App.—Houston [14th Dist.] 2002,
         5
            We note that in his motion for new trial, appellant complained of: (1) trial counsel’s failure to
strike the jury member (the foreperson of the jury) who knew one of the State’s witnesses; (2) the trial
court’s denial of his motion for continuance on the day of voir dire; and (3) the State’s untimely production
of E.L.’s records from Shoreline and counsel’s failure to adequately investigate the records. At the motion
for new trial hearing, appellant’s counsel complained of trial counsel’s failure to: (1) move for a
continuance on the day of trial; (2) investigate at the guilt/innocence and punishment phases of trial; and
(3) strike the jury foreperson.


                                                    14
pet. ref'd); State v. Read, 965 S.W.2d 74, 77 (Tex. App.—Austin 1998, no pet.). The

test for abuse of discretion is whether the trial court acted without reference to any

guiding rules or principles, and “the mere fact that a trial court may decide a matter

within its discretionary authority differently than an appellate court does not demonstrate

such an abuse.” State v. Herndon, 215 S.W.3d 901, 907–08 (Tex. Crim. App. 2007)

(quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005)). We do not

substitute our judgment for that of the trial court. Charles, 146 S.W.3d at 208.

   B.       Applicable Law

        “To obtain a reversal of a conviction under the Strickland test, a defendant must

show that:       (1) counsel’s performance fell below an objective standard of

reasonableness and (2) counsel’s deficient performance prejudiced the defense,

resulting in an unreliable or fundamentally unfair outcome of the proceeding.” Davis v.

State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010)

(quoting Strickland, 466 U.S. at 687).     “The prejudice prong of Strickland requires

showing ‘a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.’” Id. at 248 (quoting Strickland, 466 U.S.

at 694). “‘A reasonable probability is a probability sufficient to undermine confidence in

the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). “[E]ach case must be judged

on its own unique facts.” Davis, 278 S.W.3d at 353.




                                            15
         The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Appellant must overcome the strong presumption that counsel's conduct

fell within the wide range of reasonable professional assistance and that his actions

could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v.

State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing

court will not second-guess legitimate tactical decisions made by trial counsel. State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record

sufficient to demonstrate that counsel’s conduct was not the product of a strategic or

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

constitutionally adequate . . . .”). Counsel’s effectiveness is judged by the totality of the

representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes,

216 S.W.3d at 851. An allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.

    C.            Discussion

             i.      Failure to Investigate Impeachment Evidence

         By his first issue, appellant complains that his counsel was ineffective for failing

to adequately investigate E.L.’s records at Shoreline.6 Appellant argues that although

his trial counsel had access to the State’s file, they failed to investigate E.L’s records at

Shoreline.         Those documents include her admission records, in which she denied


         6
          We note that appellant had two trial counsel: Bill Leathers and William Orr. Both testified at the
hearing on appellant’s motion for new trial. Leathers testified that he was hired as co-counsel to help Orr.
Leathers was not present for voir dire because he was engaged in another trial. Leathers first saw E.L.’s
records from Shoreline the first day of trial.

                                                    16
having suffered sexual abuse, documentation of her drug and alcohol use, her juvenile

justice records documenting several assault charges, and A.L.’s 2007 witness

statement, in which she said that E.L. told her and E.L.’s grandmother that she made up

the allegations of abuse by appellant.

       One of appellant’s trial attorneys, Bill Leathers, testified that he handled the

cross-examination of E.L. during trial, and in preparation, had reviewed E.L.’s Shoreline

records. On the first day of trial, Orr gave him E.L.’s records, which consisted of a file

approximately “3 ½ to 4 inches thick, a bunch of stuff, a lot of paper.”          Orr had

previously gone through the records and marked certain documents of interest.

Leathers testified he did not specifically recall looking at E.L.’s admission records which

reflected her denial of having suffered sexual abuse. Leathers stated that having the

form reflecting E.L.’s denial of sexual abuse “could have been” a “pretty powerful piece

of evidence.” Leathers did not recall reviewing E.L.’s juvenile record and said that E.L.’s

history of assaults “might have had impeachment value.” Appellate counsel showed

Leathers E.L.’s medical records, which showed she had been pregnant and had a

miscarriage. When asked if the information would have been important to impeach

E.L.’s credibility, Leathers said it “might have been.”       Appellate counsel showed

Leathers E.L.’s probation records showing that she admitted violating the conditions of

her probation.   Leathers said it “might have been” useful.       Leathers did not recall

reviewing E.L.’s drug history and said it would have been useful in impeaching her

credibility. Leathers said a ninth grade report showing drug abuse and a high “violence

scale” “could have been a dynamite piece of data for the defense.” Leathers stated that




                                            17
he did not have these documents available during cross-examination of E.L. and it

“[c]ertainly could have” been useful to impeach E.L.’s credibility.

       On cross-examination, the prosecutor elicited testimony from Leathers that he

had questioned E.L. at trial about her history of drug use and prior sexual behavior.

Leathers said that the jury was told about E.L.’s history of drug use, history of juvenile

probation, and assaultive behavior toward A.L. As noted above, the prosecutor also

elicited testimony from Leathers that it was not surprising that E.L.’s admission

documents showed a denial of having suffered sexual abuse because she was at

Shoreline for a period of time before she outcried about the sexual abuse. When asked

if information regarding E.L.’s violent nature, sexual promiscuity, assaultive behavior

and drug usage went to the jury, Leathers said, “I think it probably did.” Leathers stated

that he was assisting William Orr, appellant’s attorney of record.           On redirect

examination, Leathers said that if he had had E.L.’s records, it would have altered his

preparation and cross-examination of E.L.

       Orr testified that he was retained to represent appellant.      Orr stated that he

interviewed appellant several times and talked to other members and friends of

appellant’s family. He admitted that he did little or no investigation for the punishment

phase of trial. Orr stated that he received a CD-ROM containing E.L.’s records from

Shoreline on the Thursday before trial started on a Monday. The records consisted of

thirteen volumes containing 941 pages of documents.              Orr said that there was

insufficient time to review all the documents. Leathers was unavailable to review the

records because he was engaged in another trial. Orr stated that he filed a motion for

continuance on Monday, the first day of trial, but after an off-the record discussion, did



                                             18
not present it to the trial court. Orr stated that he should have presented the motion for

continuance to the judge. Orr testified that he “could have” subpoenaed the Shoreline

records if he had known “that there was so much in there.” Appellate counsel reviewed

documents detailing E.L.’s drug use, and Orr said the document “would have helped.”

Orr stated that the admission record showing E.L. denied a history of sexual abuse

“really would have” been beneficial. He stated that, “I believe I knew that she had

denied to her mother the offense we were faced with.” Orr stated that if he had had the

admission form showing that E.L. said she had never been forced to have sex against

her will, it “certainly would have” assisted in preparation for cross-examination.

        In argument to the court, appellate counsel argued that trial counsel’s “series of

mistakes” “f[e]ll below the norm of professional representation” and “clearly prejudiced

[appellant].” The State argued that all of the topics covered in E.L.’s Shoreline records

“were covered during both direct as well as cross-examination during the trial.”

        The record reflects that all of the topics covered by the records—E.L.’s history of

drug use and assaultive behavior, her history of juvenile probation, the fact that she did

not tell anyone about the abuse until she had been at Shoreline for a considerable

period of time—were covered at trial.

        In his brief, appellant asserts, “Trial counsel testified that their failure to conduct

pre-trial investigation prejudiced the [a]ppellant, thereby causing harm.”        The record

citation to the motion for new trial hearing reflects no such statement. Appellant asserts

that trial counsel’s failures were “crucial” because the entire case rested on E.L.’s

credibility.




                                              19
       E.L.’s credibility was an issue for the jury to decide. Because the impeachment

evidence covered by E.L.’s Shoreline records was discussed at trial, appellant cannot

show that he was harmed by trial counsel’s failure to investigate the records and

introduce them at trial. Even if we assume that counsel’s performance was defective in

failing to utilize E.L.’s records, appellant has not shown that there is any “‘reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’”     See Ex parte Napper, 322 S.W.3d at 248 (quoting

Strickland, 466 U.S. at 694). We overrule appellant’s first sub-issue of his third issue.

       ii.      Failure to Investigate at Punishment Phase

       By his second sub-issue, appellant contends his trial counsel was ineffective for

failing to investigate mitigating evidence for the punishment phase of trial. Appellant

asserts that counsel failed to interview appellant’s family members and did not

investigate appellant’s history of drug use. According to appellant, “there were clearly

many people in [appellant’s] family and among his friends who would have come

forward or helped the trial counsel prepare a reason for mercy from the jury.” Appellant

has neither identified any of the “many people” nor explained what testimony they might

have offered or how such testimony would have made a difference in the proceedings.

An ineffective assistance claim based on counsel’s failure to call witnesses fails in the

absence of a showing that the witnesses were available to testify and that the defendant

would have benefited from their testimony. Ex parte White, 160 S.W.3d 46, 52 (Tex.

Crim. App. 2004). We overrule appellant’s second sub-issue of his third issue.

         iii.    Failure to Strike Jury Member




                                            20
       By his third sub-issue, appellant contends his trial counsel was ineffective for

failing to strike a venire member who knew and worked with Jaclyn, one of the State’s

witnesses. The venire member became the jury foreperson.

       At the motion for new trial hearing, Orr testified that it was a “mistake” to permit a

venire member who knew and worked with Jaclyn to serve on the jury. When asked to

explain, Orr stated that when the lawyers were figuring out who to strike, the bailiff

relayed that the judge wanted them to finish, and in the rush, “overlooked” striking the

venire member who knew Jaclyn. According to appellant, “it is apparent” that he was

harmed by the venire member serving as the jury foreperson because appellant

received a life sentence and $10,000 fine.

       We disagree.       Even assuming that counsel’s performance was deficient,

appellant has not shown that he was harmed by having a co-worker of Jaclyn’s serve on

the jury. At voir dire, the venire member revealed that he worked with Jaclyn. Defense

counsel asked, “Would the fact that you know her and work with the same employer

have—affect you in sitting as a juror on this case?” The venire member responded,

“No. We work on totally two different shifts.” Appellant has not shown that he was

harmed by trial counsel’s failure to strike the venire member. See Ex parte Napper, 322

S.W.3d at 248.     There is no other evidence in the record showing that the venire

member was biased or otherwise unfit to serve as a juror. We overrule appellant’s third

sub-issue of his third issue.

         iv.    Failure to Object or Request Limiting Instructions

       By his fourth sub-issue, appellant contends his counsel was ineffective by failing

to object or request limiting instructions to inadmissible testimony.           Specifically,



                                             21
appellant complains his counsel either did not object or did not request a limiting

instruction when: (1) Jaclyn testified that she “got tired of being beat on and raped” by

appellant; (2) E.L. testified that appellant was “always riding around, getting high”; and

(3) A.L. testified that appellant “didn’t deny it [the sexual abuse].”

       We first note that appellant did not complain about his counsel’s failure to object

or request a limiting instruction in his motion for new trial or at the hearing on his motion

for new trial. Appellant’s appellate counsel did not question his trial counsel at the

motion for new trial hearing regarding the failure to object or request a limiting

instruction as to the complained-of statements. Thus, the record does not contain any

evidence of trial counsel’s strategy.

       Counsel’s isolated failure to object to improper evidence does not necessarily

constitute ineffective assistance. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim.

App. 1984) (en banc). Because the record here is silent as to trial counsel’s strategy,

we must presume that counsel’s performance was effective. See Lopez v. State, 343

S.W.3d 137, 143 (Tex. Crim. App. 2011). Here, we find that the challenged conduct is

not so outrageous that no competent attorney would have engaged in it.                  See

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (holding that in cases

where the record is silent as to the trial counsel’s reasoning, the appellate court should

find ineffective assistance only if the challenged conduct is so outrageous that no

competent attorney would have engaged in it). We overrule appellant’s final sub-issue

and overrule his third issue.

                                IV.     NEW PUNISHMENT HEARING




                                              22
       By his final issue, appellant argues that the trial court erred in denying him a new

punishment hearing based on the “gross deviations from reasonable representation and

trial strategy that ultimately harmed [him].” According to appellant, “in light of these

errors,” this Court should remand for a new punishment hearing.

       As discussed above, however, appellant has failed to establish that he was

harmed by any of the complained-of conduct or its cumulative effect on his trial. We

overrule appellant’s fourth issue.

                                     V. CONCLUSION

       We affirm the trial court’s judgment.




                                                    ________________________
                                                    DORI CONTRERAS GARZA,
                                                    Justice




Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of September, 2013.




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