Opinion issued July 16, 2013.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                   NOS. 01-12-00595-CR, 01-12-00596-CR
                           ———————————
                  MICHAEL WILLIAM BOCK, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                  On Appeal from the 212th District Court
                          Galveston County, Texas
                 Trial Court Case Nos. 11CR0401, 11CR0402


                         MEMORANDUM OPINION

      Appellant Michael William Bock was convicted by a jury of two counts of

sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A), (C) (West

2011). Bock was sentenced to two years’ imprisonment on the first count, and four

years’ imprisonment on the second count, which was suspended. On appeal, Bock
challenges the sufficiency of the evidence to support his convictions and contends

that his trial counsel was ineffective. We affirm.

                                    Background

      Bock was charged and convicted of two counts of sexual assault of E.C, a

close friend of Bock’s step-daughter, Rayanne. During the summer of 2010, E.C.

was fourteen years old and spent several nights a week at Bock’s house. She

testified that she was close to Bock and thought of him as a father figure.

      E.C. testified that the first sexual assault occurred one night in July after

Bock had taken her and Rayanne to a bar. She testified that after they returned

home, she and Bock stayed up to watch television while Rayanne went to bed.

After about thirty minutes of watching television, Bock came over to her and got

on top of her. When she asked him what he was doing, Bock told her to be quiet

and then he started taking off their clothes. She told him to stop and that she did

not want to do this, but he told her it was okay. She testified that he then put his

penis inside her vagina and began to have sex with her, but eventually stopped

after she started crying. E.C. testified that Bock continued to have sex with her

several times over the course of the summer and into the fall.

      E.C. also testified that on one occasion, Bock put his mouth on her vagina.

She testified that she was lying in a bed at Bock’s house, and he took off her pants,

put his head in her crotch, and placed his mouth on her vagina. When she asked

                                          2
him what he was doing and told him to stop, he told her to stay still. She testified

that this was the first time that someone had performed oral sex on her and that it

was awkward, uncomfortable, and embarrassing.

      E.C. testified that the last time Bock sexually assaulted her was in October

2010, when she, Bock, Rayanne, Bock’s son Jeremy, and Rayanne’s cousin Lyle

were on a trip to attend a wedding at the Frio River. 1 She testified that Bock

decided that they would share a room at the cabin. After the wedding, Bock, E.C.,

Rayanne, and Lyle started drinking. Shortly after Rayanne fell asleep in a chair on

the porch, E.C. went to her room. E.C. testified that Bock came into her room and

she told him to go away. Bock told her no, got on top of her, started taking her

clothes off, and then started having sex with her.

      After the Frio River trip, in November 2010, E.C. told her mother that Bock

had been sexually assaulting her. She took E.C. to a health care professional the

next day, and called the Galveston County Sheriff’s Department. She then took

E.C. to the Child Advocacy Center where E.C. was interviewed by a forensic

interviewer and given a physical examination.

      At trial, the State presented testimony from various persons involved with

the investigation. Lieutenant Gary Echols, with the Galveston County Sheriff’s

Department, testified that he was the on-call detective at the time the department


1
      Bock was not charged with the sexual assault that occurred on the Frio River trip.
                                           3
received the call concerning the sexual assault of E.C. He testified that upon

receiving the call, he set up an appointment with the Child Advocacy Center, and

then took statements from various witnesses.         Based on the interviews with

witnesses, Lieutenant Echols determined that the sexual assaults occurred at

Bock’s house. He testified that he did not get a search warrant for Bock’s house

and did not collect any DNA because of the amount of time that had lapsed

between the first sexual assault and the time it was reported.

      Rayanne’s cousin Lyle also testified that he attended the wedding at the Frio

River and stayed at the cabin. He testified that he slept in one bedroom, Jeremy

slept in another, Rayanne fell asleep outside, and Bock and E.C. slept in the other

bedroom together. He testified that he thought it was odd that Bock would share a

bedroom with E.C. rather than one of his own children.

      Dr. Ralph Noble, a pediatrician who specializes in child abuse pediatrics,

testified that there were no signs of trauma found during E.C.’s physical

examination and that her hymen was intact. However, he testified that, in E.C.’s

case, this was still consistent with a diagnosis of sexual abuse based on her

statements and history. He testified that in most sexual abuse cases, there will be

no physical signs of sexual abuse and no abnormalities with the hymen due to the

lapse of time between when the abuse occurred and when the child is examined.




                                          4
He also testified that the fact that the hymen is intact does not necessarily mean

there was no abuse because that part of the body heals very rapidly.

      Angela Attaway, a nurse practitioner, testified that she interviewed E.C. to

get a history of the assault and performed a physical examination of her. She

testified that E.C. told her Bock sexually assaulted her, by placing his penis inside

her vagina, at least six times; that Bock told her “I know you want it”; that E.C.

told her mom what happened because she decided that would be best; and that the

assaults happened in her room at Bock’s house while everyone else was sleeping.

Attaway also testified that when she asked E.C. if Bock wore a condom, E.C. told

her no because he has had a vasectomy.

      Bock testified in his own defense and stated that he did not sexually assault

E.C. He testified that he allowed E.C. to spend so much time at his house because

she was one of his daughter’s best friends and she seemed like she needed help.

He testified that E.C. would come to him with questions about life, boyfriends, and

her parents and that he felt like a father figure to her. He also testified that he was

concerned about E.C.’s drug use and that he tried to help her work through it. He

testified that after the trip to the Frio River, he no longer wanted E.C. around

because she had offered drugs to his daughter, Rayanne. He also admitted that he

had allowed Rayanne and E.C. to drink on occasion, and that he now knows that

was a bad idea. Bock denied sleeping in the same room as E.C. at the cabin. He

                                          5
testified that E.C. knew he had a vasectomy because Rayanne, Jeremy, and E.C.

were talking about sex one day and asked him whether he was “cut.”

      After hearing all of the evidence, the jury found Bock guilty of both counts

of sexual assault of a child. Bock appealed.

                           Sufficiency of the Evidence

      In his first point of error, Bock argues that the evidence is insufficient to

support his convictions for sexual assault of a child. Bock does not attack the

sufficiency of the evidence to support any specific element of the offense; rather,

his complaint on appeal is essentially a challenge to E.C.’s credibility.       He

contends that evidence conclusively established a reasonable doubt, and that,

“[d]espite the undisputed evidence of drug usage, alcohol abuse and usage, a

reputation for lying, and general improbability of the alleged events,” the jury

“ignored all reasonable (if not even compelling) doubts as to the young girl’s lack

of credibility” and convicted based on her statement alone. Bock argues that no

other evidence, direct or circumstantial, supported the jury’s verdict. The State

responds that the child victim’s testimony alone is sufficient to support Bock’s

convictions and that it was up to the jury to weigh and consider the credibility of

the witnesses.




                                         6
A.    Standard of Review

      An appellate court reviews legal and factual sufficiency challenges using the

same standard of review. See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim.

App. 2011). “Under this standard, evidence is insufficient to support a conviction

if considering all record evidence in the light most favorable to the verdict, a

factfinder could not have rationally found that each essential element of the

charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337

S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).         Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; or (4) the acts alleged do not

constitute the criminal offense charged.    Gonzalez, 337 S.W.3d at 479.       The

sufficiency of the evidence is measured by the elements of the offense as defined

in a hypothetically correct jury charge, which is one that “accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.”

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If an appellate court

                                        7
finds the evidence insufficient under this standard, it must reverse the judgment

and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.

      An appellate court determines “whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17

(Tex. Crim. App. 2007)). When the record supports conflicting inferences, an

appellate court presumes that the factfinder resolved the conflicts in favor of the

verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793). “An appellate court likewise defers to the factfinder’s evaluation of the

credibility of the evidence and the weight to give the evidence.” Gonzalez, 337

S.W.3d at 479.      A court treats direct and circumstantial evidence equally:

circumstantial evidence can be as probative as direct evidence, and circumstantial

evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778

(quoting Hooper, 214 S.W.3d at 13).

B.    Applicable Law

      Bock was convicted of two counts of sexual assault of a child. To prove that

Bock committed a sexual assault of a child in the first count, the State was required

to establish that Bock intentionally or knowingly caused the penetration of the




                                          8
sexual organ of a child,2 in this case E.C., by any means. See TEX. PENAL CODE

ANN. § 22.011(a)(2)(A) (West 2005). To prove the second count of sexual assault

of a child, the State was required to establish that Bock intentionally or knowingly

caused the sexual organ of E.C. to contact the mouth of another person, Bock. Id.

§ 22.011(a)(2)(C).

      A conviction of sexual assault of a child is “supportable on the

uncorroborated testimony of the victim of the sexual offense.” TEX. CODE CRIM.

PROC. ANN. art. 38.07(a); see also Martines v. State, 371 S.W.3d 232, 240 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). The victim is not required to inform

another person of the alleged offense if at the time of the alleged offense the victim

was seventeen years of age or younger.         TEX. CODE CRIM. PROC. ANN. art.

38.07(b)(1). The State has no burden to produce any corroborating or physical

evidence and the jury determines the credibility of the witnesses and may believe

all, some, or none of the testimony. Lovings v. State, 376 S.W.3d 328, 336 (Tex.

App.—Houston [14th Dist.] 2012, no pet.) (citing Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991)); Benton v. State, 237 S.W.3d 400, 404 (Tex.

App.—Waco 2007, pet. ref’d). We liberally construe testimony given by a child

victim of sexual assault, and as long as the child communicates to the factfinder



2
      A child is defined as a person younger than seventeen years of age. See TEX.
      PENAL CODE ANN. § 22.011(c)(1).
                                          9
that the touching occurred on a part of the body within the definition of the statute,

the evidence will be sufficient. Martines, 371 S.W.3d at 240.

C.    Analysis

      Bock notes that there were inconsistencies between E.C.’s statement at the

Child Advocacy Center and her testimony at trial and argues that this is evidence

E.C.’s testimony was not credible and created reasonable doubt as to his guilt. He

also points this court to E.C.’s use of drugs and alcohol and to the fact that E.C.

admitted during her testimony that she continued to go over to Bock’s house, even

though he was allegedly assaulting her. But, these arguments primarily concern

E.C.’s credibility as a witness, not the sufficiency of the evidence. The jury was

free to weigh the evidence, and this court will not disturb the jury’s credibility

determinations on appeal. See Shaw v. State, 329 S.W.3d 645, 657 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d); Gonzalez, 337 S.W.3d at 479.

      With respect to the first count, E.C. testified that the sexual assault occurred

one night in July 2010, when she was fourteen years old. She testified that Bock

got on top of her and started taking off their clothes. She testified that he then put

his penis inside her vagina and began to have sex with her, but eventually stopped

after she started crying. With respect to the second count, E.C. testified that she

was lying in bed at Bock’s house when he took off her pants, put his head down in

her “crotch area,” and placed his mouth on her vagina.       This detailed testimony

                                         10
alone was sufficient to support Bock’s convictions. See Shaw, 329 S.W.3d at 657–

58 (holding evidence was legally sufficient to support appellant’s conviction for

aggravated sexual assault of child based on victim’s detailed testimony about how

appellant penetrated her sexual organ); see also Bargas v. State, 252 S.W.3d 876,

888 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding evidence sufficient

to sustain appellant’s conviction for sexual assault, despite lack of physical

evidence, where child victim provided ample and detailed testimony to establish

that sexual assault occurred). Accordingly, after viewing all the evidence in a light

most favorable to the verdict and presuming that the factfinder resolved all

conflicts in favor of the verdict, we hold that the evidence was sufficient to support

Bock’s convictions for sexual assault.

      We overrule Bock’s first point of error.

                         Ineffective Assistance of Counsel

      In his second point of error, Bock contends that his counsel was ineffective

for failing to: (1) request a limiting instruction on evidence of an extraneous

offense; (2) object to the State’s introduction of victim impact testimony;

(3) request a hearing on the admissibility of an alleged outcry statement; and

(4) object to the introduction of inadmissible hearsay from the complaining

witness’s mother.




                                         11
A.    Standard of Review

      Both the federal and state constitutions guarantee an accused the right to

have the assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, §

10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West 2005). The right to counsel

includes the right to reasonably effective assistance of counsel. See Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales,

945 S.W.2d 830, 835 (Tex. Crim. App. 1997). Both state and federal claims of

ineffective assistance of counsel are evaluated under the two prong analysis of

Strickland. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The

first prong requires the appellant to demonstrate that counsel’s performance was

deficient, meaning that counsel made errors so serious that he was not functioning

as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687,

104 S. Ct. at 2064. The second prong requires the appellant to show that counsel’s

deficient performance prejudiced the defense. Id. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial. Id. To

establish prejudice, the appellant must prove there is a reasonable probability that

but for counsel’s deficient performance, the result of the proceeding would have

been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). A

reasonable probability is “a probability sufficient to undermine confidence in the

outcome of the proceedings.” Id. Unless an appellant can prove both prongs, an

                                        12
appellate court must not find counsel’s representation to be ineffective. Strickland,

466 U.S. at 687, 104 S. Ct. at 2064.

      There is a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).           On direct appeal, a

reviewing court will rarely be able to fairly evaluate the merits of an ineffective-

assistance claim because the record on direct appeal is usually undeveloped and

inadequately reflective of the reasons for defense counsel’s actions at trial. Mata v.

State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The lack of a clear record

usually will prevent the appellant from meeting the first prong of Strickland, as the

reasonableness of counsel’s choices and actions during trial can be proven

deficient only through facts that do not normally appear in the appellate record. Id.

In order for an appellate court to find on direct appeal that counsel was ineffective,

counsel’s deficiency must be affirmatively demonstrated in the trial record. Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). When the record is silent

as to counsel’s reasons for his conduct, finding counsel ineffective would call for

speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d). An appellate court will not speculate

about the reasons underlying defense counsel’s decisions to find counsel

ineffective. Id.; Jackson, 877 S.W.2d at 771. If appellant does not file a motion

                                         13
for new trial or request a hearing, or if counsel does not appear at the hearing, an

affidavit from trial counsel becomes almost vital to the success of an ineffective

assistance claim on direct appeal. Stults, 23 S.W.3d at 208–09.

      Moreover, “[i]t is not sufficient that the appellant show, with the benefit of

hindsight, that his counsel’s actions or omissions during trial were merely of

questionable competence.” Mata, 226 S.W.3d at 430. Rather, in order to prevail

on an ineffective-assistance claim on direct appeal, “the record must demonstrate

that counsel’s performance fell below an objective standard of reasonableness as a

matter of law, and that no reasonable trial strategy could justify trial counsel’s acts

or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at

143; see also Mata, 226 S.W.3d at 428–29 (recognizing exception to presumption

of reasonable professional judgment when complained-of conduct by trial court is

of type which no reasonably competent defense attorney would have engaged in

for any reason).

B.    Analysis

      First, Bock complains that counsel was deficient because he failed to request

a limiting instruction during the guilt-innocence phase relating to the extraneous

offense that occurred at the Frio River cabin. See TEX. R. EVID. 105(a). Bock

concedes that this evidence was admissible under Texas Rule of Evidence 404(b),




                                          14
but contends his counsel should have requested a limiting instruction at the time

the jury heard testimony about the offense.

      Bock did not file a motion for new trial, and the record is silent as to why

defense counsel failed to request a limiting instruction. And, we may not speculate

as to the reasons for defense counsel’s conduct. Stults, 23 S.W.3d at 208; Lopez,

343 S.W.3d at 142 (stating that appellate court must not engage in retrospective

speculation and deficient performance instead must be affirmatively demonstrated

in record). In any event, the record reflects that although defense counsel did not

request a contemporaneous limiting instruction, the jury charge included a limiting

instruction on the use of extraneous offense evidence. Under these circumstances,

we cannot conclude that counsel was ineffective. See Howland v. State, 966

S.W.2d 98, 105 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274

(Tex. Crim. App. 1999) (refusing, on direct appeal, to find defense counsel

ineffective where counsel failed to request limiting instructing related to

extraneous offense during trial, but limiting instruction was included in jury charge

and record was silent as to counsel’s reasoning).

      Second, Bock contends that his counsel was ineffective for failing to object

to the State’s introduction of victim impact testimony during the guilt-innocence

phase. Specifically, Bock alleges that counsel was deficient for failing to object to

E.C.’s mother’s testimony that E.C. continued to undergo counseling, maintained

                                         15
poor grades, endured degrading comments from peers, and was afraid to be alone

following the assault, and for failing to object to E.C.’s testimony that her social

situation was “hurt” after she admitted she had been sexually assaulted by Bock.

      In support of his argument that this victim impact testimony was improper,

Bock cites Miller-El v. State, 782 S.W.2d 892 (Tex. Crim. App. 1990), which

states that victim impact testimony does not have “any tendency to make more or

less probable the existence of any fact of consequence at the guilt stage of trial.”

Miller-El, 782 S.W.2d at 895. But Miller-El holds that victim impact testimony

can be admissible as a “circumstance of the offense.” Miller-El, 782 S.W.2d at

895. And later cases from the courts of appeals likewise have concluded that

victim impact testimony may be admissible during the guilt phase if the testimony

“would have a tendency to make more or less probable a fact of consequence at the

guilt stage; that is, whether appellant committed the crimes at all.” Longoria v.

State, 148 S.W.3d 657, 660 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); see

also Cueva v. State, 339 S.W.3d 839, 881 (Tex. App.—Corpus Christi 2011, pet.

ref’d) (suggesting that if victim-impact testimony was relevant to any guilt issue, it

would be admissible at guilt stage of trial); Warren v. State, 236 S.W.3d 844, 847

(Tex. App.—Texarkana 2007, no pet.) (explaining that if issue of whether sexual

assault actually occurred was contested, then subsequent adverse reaction of victim

to occurrence is relevant to show fact of occurrence).

                                         16
      In this case, the testimony regarding the impact the sexual assault had on

E.C.’s life was admissible to show that a sexual assault in fact occurred.

Accordingly, we cannot say that defense counsel’s failure to object to it fell below

the objective standard of reasonableness such that no reasonable trial strategy

could justify his actions. See Lopez, 343 S.W.3d at 143; see also Cueva, 339

S.W.3d at 881 (holding that because victim impact testimony had “a tendency to

make more or less probable a fact of consequence at the guilt stage” and would

have been admissible, trial counsel’s failure to object did not fall below objective

standard of reasonableness); Longoria, 148 S.W.3d at 660 (holding that trial

counsel’s failure to object to victim impact testimony did not fall below objective

standard of reasonableness where that “testimony regarding the girls’ behavior and

long-term prognosis would have a tendency to make more or less probable a fact of

consequence at the guilt stage”).

      Finally, Bock contends that his counsel was ineffective for failing to object

to E.C.’s mother’s hearsay statements and for failing to request a hearing under

article 38.072 of the Code of Criminal Procedure regarding their admissibility. See

TEX. CODE CRIM. PRO. ANN. art. 38.072 § 1. However, as the State correctly points

out, E.C.’s mother’s testimony did not contain hearsay. She described E.C.’s

demeanor when E.C. told her about the sexual assaults and then described how she

reacted—by taking E.C. to a health care professional and then the Child Advocacy

                                        17
Center. E.C.’s mother did not relate E.C.’s statements about the sexual assaults,

and nothing in the record indicates that the State designated her as the outcry

witness.   Bock’s counsel cannot be found ineffective for failing to object to

admissible testimony. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App.

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

      We conclude that Bock has neither shown that his trial counsel’s actions at

trial were “so outrageous that no reasonable competent trial attorney would have

done likewise,” nor “rebutted the presumption that his trial counsel’s actions were

part of some sound trial strategy.” See Mata, 226 S.W.3d at 433. Therefore, we

hold that Bock has failed to satisfy the first prong of Strickland. Given our

holding, we need not address Strickland’s second prong.

      We overrule Bock’s second point of error.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Jennings, Brown, and Huddle.

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



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