                         NUMBER 13-13-00014-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JUAN GARCIA,                                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


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


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Perkes
      Appellant Juan Garcia appeals his conviction for the offense of aggravated sexual

assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw

through 2013 3d C.S.). A jury found appellant guilty and assessed punishment at ninety-

nine years’ confinement in the Texas Department of Corrections, Institutional Division.

By four issues, which we construe as one, appellant contends that he was denied effective
assistance of counsel. Specifically, appellant asserts that his counsel failed to: (1)

conduct a reasonable investigation and call witnesses during the trial and punishment

phases; (2) consult with an expert witness or review scientific literature concerning false

allegations of sexual abuse; (3) effectively cross-examine the State’s witnesses; and (4)

object or seek a continuance when the State called an undesignated witness during the

punishment phase. We affirm.

                                           I. BACKGROUND

        Appellant’s stepdaughter, G.D., alleged that appellant sexually assaulted her. 1

During the guilt/innocence phase of the trial, G.D. testified that appellant committed

numerous inappropriate acts towards her, beginning when she was eight years old. The

inappropriate acts included: suggesting she try on a pair of women’s underwear in a

store while her mother was in another changing room; masturbating at the foot of her bed;

lying nude in her bed next to her while she pretended to sleep; touching her

inappropriately; and penetrating her vagina with his fingers.2 Appellant’s counsel cross-

examined the State’s witnesses, but did not cross-examine G.D. Appellant did not testify

and did not call any defense witnesses during this phase of the trial.

        During the punishment phase, the State called B.R., A.L., T.S., and R.T. to testify.

These women recounted an incident that occurred with appellant, approximately six years

before appellant began molesting G.D.                According to all four witnesses, they were




        1 G.D. was an adult at the time of trial. She testified that the sexual abuse happened approximately

ten years earlier.

        2  The State presented four witnesses during the guilt/innocence phase of the trial: G.D., her
father, her mother, and Sergeant Charlotte Brown.
                                                     2
playing outside when appellant got their attention by knocking on a window. Through

the window, they saw that appellant was naked and masturbating. They each testified

that appellant pleaded guilty to indecency and that he received deferred adjudication. In

addition, A.C., a childhood friend of one of appellant’s daughters, testified that appellant

touched her “in her private parts” at a sleepover when she was eleven years old. A.C.

also testified that on one occasion, she saw appellant standing naked and masturbating

at a window while she was playing outside. Defense counsel did not cross-examine the

State’s witnesses and did not present any witnesses during the punishment phase of trial.

       Appellant filed a motion for new trial. During the hearing on appellant’s motion,

five of appellant’s daughters stated that, had they testified at their father’s trial, they

generally would have had favorable things to say about appellant. They also testified

that appellant’s defense counsel did not interview them prior to trial.

       Defense counsel testified at the hearing that his trial strategy was to show that

G.D.’s delayed accusations of sexual abuse were an attempt by G.D.’s mother to gain an

advantage over appellant in their divorce proceedings. Defense counsel stated that he

did not need to call any witnesses because he was able to pursue this strategy through

cross-examination. He also said that he did not need an expert witness because the

defensive theory was relatively simple. When questioned about his strategy regarding

punishment, he explained that he did not question or present any witnesses because it

would have made “a bad situation worse.” One of his investigators informed him that

appellant’s daughters had played with the girls involved in appellant’s indecency case.




                                             3
Defense counsel feared that using appellant’s daughters as witnesses would have

opened the door to damaging cross-examination about the incident.

       Appellant introduced into evidence at the new trial hearing, an affidavit from

Jerome Brown, Ph.D., in which he attested that CPS records and therapy records of G.D.

could have been reviewed to determine whether proper methods were utilized; that G.D.’s

therapy attendance could have suggested low motivation in treatment, which would be

inconsistent with having been sexually abused; and that, based upon the divorce of

appellant and his wife, there was an increased probability of false allegations. Brown

averred that an expert could have helped develop a line of questioning, and suggested

several books that could have been used to prepare defense counsel. The trial court

denied appellant’s motion for new trial.

                     II. STANDARD OF REVIEW AND APPLICABLE LAW

       To prevail on an ineffective assistance of counsel claim, the defendant must show:

(1) counsel’s representation fell below an objective standard of reasonableness; and

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);

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

review of the counsel’s representation is highly deferential; we will find ineffective

assistance only if appellant rebuts the strong presumption that his counsel’s conduct fell

within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689;

Lopez, 343 S.W.3d at 142; Jaynes, 216 S.W.3d at 851.           The record must contain

evidence of the counsel’s reasoning, or lack thereof, to rebut the presumption. Moreno


                                            4
v. State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref’d). We review the

totality of representation rather than isolated instances in determining whether trial

counsel was ineffective. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.

2006); Lopez, 343 S.W.3d at 143.

      When, as here, ineffective assistance was first urged in a motion for new trial, we

review the two Strickland prongs through the prism of the abuse of discretion standard.

See Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—Corpus Christi 2011, pet. denied);

State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998, pet. ref’d). A trial court

abuses its discretion when no reasonable review of the record could support the trial

court’s ruling. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).

                                   III.   DISCUSSION

A.    Case Investigation

      Counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691.

To establish an ineffective assistance claim for failure to investigate, a defendant must

allege with specificity what the investigation would have revealed and how it would have

changed the outcome of the trial. United States v. Green, 882 F.2d 999, 1003 (5th Cir.

1989). Appellant asserts that defense counsel’s performance was inadequate because

he allegedly failed to speak with appellant’s daughters. Appellant argues that because

of his failure, defense counsel did not know that the daughters could have provided

testimony that G.D. fabricated her allegations.




                                            5
       Although appellant argues that an “investigation could result in a defense of

fabrication, retaliation, or allegations resulting from parental alienation,” the record does

not support these claims. Defense counsel’s investigator informed him that appellant’s

daughters had played with the girls involved in appellant’s indecency case. In addition,

during the hearing on appellant’s motion for new trial, appellant’s daughters all testified

that G.D. did not have a good relationship with appellant and that appellant was a good

father. However, none of the daughters testified about appellant’s sexual abuse charges

or that G.D. was untruthful regarding her allegations. Although appellant’s daughters

allege there is animosity among appellant, G.D., and G.D.’s mother specifically relating

to appellant’s divorce, such allegations do not impeach G.D.’s veracity. Appellant fails

to show what further investigation would have revealed and how it would have helped

him. See id.

B.     Defense Witnesses

       Appellant argues that his daughters and ex-spouse should have been called as

character witnesses during the punishment phase. Appellant claims that the witnesses

would have testified regarding mitigating factors for the jury to consider and that there is

a reasonable probability that the jury’s assessment of punishment would have been less

severe had the witnesses testified.

       Defense counsel testified that calling appellant’s family members would have

invited harmful cross-examination.     Anticipating that the State would use the family

members to highlight the 1995 indecency case, defense counsel made a legitimate trial

strategy decision to not put the daughters on the stand. See Ex parte McFarland, 163


                                             6
S.W.3d 743, 757 (Tex. Crim. App. 2005) (explaining that even though possible witness

testimony may have been beneficial to defense, it was a legitimate strategic decision not

to call witness because State would have cross-examined witness about prior robberies

committed by defendant); Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref'd) (setting out that counsel can only make a reasonable decision to

forego presentation of mitigating evidence after evaluating available testimony and

determining it would not be helpful); see also Thomas v. State, No. 06-01-00021-CR,

2002 WL 171598, at *8 (Tex. App.—Texarkana, Feb. 5, 2002, no pet.) (not designated

for publication) (“It is a legitimate strategy for counsel not to put even favorable witnesses

on the stand where there is a risk of opening the door to unfavorable testimony on cross-

examination.”). Accordingly, because placing the daughters on the stand could have

potentially opened the door to testimony that could harm appellant, we hold defense

counsel’s conduct fell within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 699–700.

       Appellant relies on Milburn, 15 S.W.3d at 270, for the proposition that the failure to

put on available witnesses constitutes ineffective assistance of counsel. Appellant’s

reading of Milburn is unpersuasive.        In Milburn, trial counsel failed to investigate,

evaluate, or submit any character testimony in spite of the fact at least twenty people

were available to testify on defendant’s behalf. Id. at 269–70. Milburn emphasizes the

importance of presenting helpful witnesses and evidence, but also recognizes that

defense counsel may “forego presentation of mitigating evidence after evaluating

available testimony and determining that it would not be helpful.” Id. at 270.


                                              7
C.     Expert Witness

       Appellant argues that trial counsel did not have an expert witness strategy and that

an expert was necessary to counter Sergeant Charlotte Brown’s testimony that G.D. had

not been manipulated into making an accusation against appellant.3 An error in trial

strategy will only be considered inadequate representation if counsel’s actions are without

a plausible basis. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).

During the motion for new trial hearing, appellant asked defense counsel about retaining

an expert witnesses:

       [Appellant Counsel]:              Okay. What was your trial strategy not getting
                                         an expert witness in this case, an expert witness
                                         who is trained in child sex abuse cases, a
                                         psychologist, who could—in fact, a mental
                                         health professional with special expertise in
                                         treatment and evaluation of sex abuse
                                         allegations? What was your trial strategy in not
                                         getting an expert to look at the therapy records?

       [Defense Counsel]:                I did not have a trial strategy in regard to that.
                                         As I said, my core strategy was the fact that G.D.
                                         loathed [appellant] for many reasons.

From defense counsel’s answer, appellant reasons that defense counsel had no trial

strategy regarding an expert witness. Appellant claims Dr. Brown could have testified

regarding a pattern of behavior called “sex abuse in divorce syndrome.”                  Further,

appellant asserts that expert review of the complainant’s therapy records could have

indicated that complainant’s behavior was inconsistent with having been sexually abused.

       During the hearing, defense counsel explained his trial strategy, as follows:

             My trial strategy was that these accusations which were over 12
       years old only came to light based upon a knock-down drag-out divorce

       3   Sergeant Brown investigated G.D.’s allegations against appellant.
                                                    8
       between my client and his wife, and that's when the first real outcry
       emanated.

              ....

              I think the fact that people often make allegations of sexual abuse
       during a divorce is certainly something of common knowledge. I don't think
       you need an expert to tell that to a jury or anybody else.

Defense counsel stated he executed his trial strategy effectively through cross-

examination of the State’s witnesses.

       The record reflects that defense counsel’s strategy, like Dr. Brown’s proposed

strategy, was to characterize the sexual abuse accusations as an attempt by appellant’s

wife to gain an advantage over appellant in the divorce proceedings. Defense counsel

concluded, however, that he did not need an expert witness to advance this argument.

Though defense counsel admitted that an expert witness may have helped him develop

a line of questioning for the complainant to show inconsistencies in her behavior, a

defendant's constitutional right to counsel does not mean errorless counsel. See Howell

v. State, 563 S.W.2d 933 (Tex. Crim. App. 1978). This reasoning, supplemented by the

strong presumption that a counsel’s actions fall within the wide range of reasonable

professional assistance, leads us to conclude that his actions were both plausible and

within the range of acceptable professional assistance.       See State v. Morales, 253

S.W.3d 686, 698 (Tex. Crim. App. 2008) (quoting Strickland, 466 U.S. at 687, 689 (1984)).

       Appellant relies on Ex parte Briggs, Wright v. State, and Ex parte Ard to support

his argument that the failure to present expert testimony constitutes ineffective assistance

of counsel. See Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005); Wright

v. State, 223 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Ex parte Ard,

                                             9
No. AP-75704, 2009 WL 618982 at *2, (Tex. Crim. App. 2009) (mem. op., not designated

for publication).4 Each case is factually distinguishable. Unlike trial counsel in Briggs,

Wright, and Ard, defense counsel explained his legitimate strategic reasons for his actions

that were not based on timing or financial constraints. In Briggs, the decision not to

produce expert witnesses was based on a financial decision, not a strategic one. See

Briggs, 187 S.W.3d at 457. In Wright, trial counsel did not hire an expert because (1) he

was told that any expert he hired would not be able to interview the complainant, and (2)

by the time he had received the investigator’s notes he did not have time to contact an

expert. See Wright, 223 S.W.3d at 43. In Ard, the Texas Court of Criminal Appeals

based its reversal on a difference between the expert’s testimony at trial and at the writ

hearing that could not be explained or justified by trial strategy. See Ard, 2009 WL

618982, at *5.

       In sum, we conclude that trial counsel’s decision not to present expert testimony

does not constitute ineffective assistance.

D.     Scientific Literature

       Appellant also argues that trial counsel’s performance was deficient because he

did not fully investigate existing scientific literature. During the motion for new trial,

appellant questioned defense counsel on his familiarity with scientific evidence in sexual

abuse cases as follows:

       [Appellant Counsel]:            Okay. Have you ever used an expert in a child
                                       sexual abuse case or aggravated sex assault
                                       case?


       4  Unpublished opinions have no precedential value and must not be cited as authority by counsel
or by a court. TEX. R. APP. P. 77.3.
                                                  10
      [Defense Counsel]:                  Yes, sir, I believe I have.

      [Appellant Counsel]:                Have you read any books on child abuse in
                                          preparing for cross-examination of complaining
                                          witnesses?

      [Defense Counsel]:                  Well, I've certainly read and kept up with case
                                          law, and I have read some treatises.

      Contrary to appellant’s assertion, the record does not support the argument that

defense counsel failed to research scientific literature, that defense counsel was unaware

of the literature, or that defense counsel’s representation was constitutionally deficient

because he failed to review any scientific literature concerning false allegations.

Defense counsel’s familiarity with scientific literature falls within the wide range of

reasonable professional assistance.

E.    Cross-Examination of the State’s Witnesses

      Appellant argues his defense counsel should have cross-examined: (1) Sergeant

Brown about a 2003 visit by G.D. and her father to the sheriff’s office; (2) G.D.’s father

about potential past abuse; (3) Captain Susan Maxwell 5 of the Matagorda County

Sheriff’s Department about a February 14, 2003 sheriff’s report and whether or not she

visited G.D.’s school; (4) G.D.’s mother about CPS allegations of abuse made on a regular

basis; and (5) G.D. regarding her inconsistent statements.

      Again, appellant has failed to rebut the presumption that his counsel’s cross-

examination fell within the wide range of reasonable professional assistance. Resendiz

v. State, 112 S.W.3d 541, 548 (Tex. Crim. App. 2003) (“noting that a suggestion that

cross-examination should have been conducted in another manner does not rebut


      5   Captain Maxwell did not testify in this case.
                                                     11
presumption that counsel's conduct fell within wide range of reasonable professional

assistance”). It is frequently a sound trial strategy not to attack a sympathetic eyewitness

without very strong impeachment. Ex parte McFarland, 163 S.W.3d at 756.

       Cross-examination is an art, not a science, and it cannot be adequately judged in

hindsight. Ex parte McFarland, 163 S.W.3d at 756. While appellant has suggested that

certain points in cross-examination could have been done differently, “isolated instances

in the record reflecting errors of commission or omission do not cause counsel to become

ineffective, nor can ineffective assistance of counsel be established by isolating or

separating out one portion of the trial counsel’s performance for examination.” Ex parte

Welborn, 785 S.W.2d 391, 293 (Tex. Crim. App. 1990) (en banc); see Lopez, 343 S.W.3d

at 143 (holding that an appellate court looks to totality of representation). We hold that

defense counsel’s cross-examination constituted reasonable professional assistance.

F.     Objecting to Punishment Phase Witness and Filing a Motion for
       Continuance

       Appellant complains that, during the punishment phase, defense counsel failed to

object to the State’s undesignated witness, A.C., and failed to move for a continuance to

investigate A.C. in light of anticipated testimony. Appellant relies on defense counsel’s

admission during the hearing that, in hindsight, it may have been a mistake to not object

or to ask for a continuance and that A.C.’s testimony may have contributed to appellant’s

sentence.

       Despite defense counsel’s candid reflection, we assess counsel’s performance

without the benefit of hindsight. See Strickland, 466 U.S. at 669 (explaining that a fair

assessment of attorney performance requires that every effort be made to eliminate

                                            12
distorting effects of hindsight, to reconstruct circumstances of counsel's challenged

conduct, and to evaluate conduct from counsel's perspective at the time of trial); see also

Ex parte Welborn, 785 S.W.2d at 393. When claiming ineffective assistance for failing

to object, a party must demonstrate that if trial counsel had objected, the trial judge would

have committed error in refusing to sustain the objection. Vaughn v. State, 931 S.W.2d

564, 566 (Tex. Crim. App. 1996) (en banc). In Hollowell v. State, the Texas Court of

Criminal Appeals held that evidence willfully withheld from disclosure under a discovery

order should be excluded from evidence. Hollowell v. State, 571 S.W.2d 179, 180 (Tex.

Crim. App. 1978). The sanction of exclusion, however, should not be imposed absent

bad faith or willfulness on the part of the prosecution. Peña v. State, 864 S.W.2d 147,

149 (Tex. App.—Waco 1993, no pet.).

       The record is devoid of any evidence that would show that the State willfully or

knowingly failed to timely disclose A.C.’s testimony. Appellant has not provided any

evidence that the State knew of A.C. before she submitted her statement to police or that

the State deliberately withheld the disclosure of A.C. as a witness. Therefore, we are

unable to conclude that the trial court would have abused its discretion by overruling an

objection to A.C.’s testimony.    See Vaughn, 931 S.W.2d at 566 (requiring proof of

prosecutorial bad faith in withholding a witness’s information).

       When viewed in light of Strickland, appellant’s claim that he was denied effective

assistance of counsel based on counsel’s failure to ask for a continuance to investigate

A.C. also fails.   See Strickland, 466 U.S. at 691.       Even assuming the failure was

deficient performance, appellant fails to put forth any evidence that defense counsel’s


                                             13
decision not to ask for a continuance prejudiced or harmed his defense. See id. (holding

that to prevail on ineffective assistance of counsel claim, appellant must show deficient

performance prejudiced defense). As previously discussed, appellant must specifically

show what further investigation would uncover and how it would help the defense. See

Green, 882 F.2d 999, 1003. Appellant has done neither. The record fails to show how

defense counsel’s failure to request a continuance during punishment prejudiced

appellant’s defense. See Strickland, 466 U.S. at 691.

 G.      Summary

        Appellant has failed to show that his attorney’s performance fell below an objective

standard of reasonableness or that the outcome of trial would have been different but for

his trial counsel’s alleged mistakes. See id., 466 U.S. at 687–691. Because the record

supports the trial court’s ruling, we find that the trial court did not abuse its discretion in

denying appellant’s motion for new trial.6 See Cueva, 339 S.W.3d at 878.

                                            IV. CONCLUSION

        We affirm the judgment of the trial court.


                                                                  GREGORY T. PERKES
                                                                  Justice

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

Delivered and filed the
15th day of December, 2014.

        6 Appellant claims that S.J.P. v. Thaler, No. 4:09–CV–112–A, 2010 WL 5094307 (N.D. Tex. Dec.

3, 2010) compels reversal in this case. Appellant argues that S.J.P. is factually similar to the present case
and because the district court in S.J.P. ruled that the defendant received ineffective assistance of counsel,
we must do the same in appellant’s case. We disagree, noting that district court’s ruling in S.J.P. was
reversed by Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011).
                                                    14
