      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                        NO. 03-01-00238-CR
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                                     Buster Sargent, Appellant

                                                   v.

                                    The State of Texas, Appellee


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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
        NO. 0995885, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
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                A jury found appellant Buster Sargent guilty on three counts of aggravated sexual

assault of a child and four counts of indecency with a child by contact. See Tex. Pen. Code Ann.

§§ 21.11, 22.021 (West Supp. 2002). The jury assessed punishment at three life sentences for the

aggravated sexual assault offenses, and four twenty-year sentences for the indecency with a child by

contact offenses. In thirteen points of error, appellant contends that he received ineffective assistance

of counsel, that the trial court erred in introducing videotaped statements made by the appellant

during a non-custodial interview, and that the evidence was factually insufficient to support the jury’s

verdict. We will overrule these contentions and affirm the convictions.


Ineffective Assistance of Counsel

                Appellant claims that he received ineffective assistance of counsel on two alternate

grounds: (1) due to fatigue, defense counsel was constructively absent from the proceedings, and (2)
taken as a whole, defense counsel’s actions fell below the minimum standard for professional conduct.

To prevail on an ineffective assistance of counsel claim, appellant must show that counsel made

serious errors and that those errors caused serious harm. Strickland v. Washington, 466 U.S. 668,

690 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In some egregious

circumstances, for example when counsel has been completely denied or is absent or unconscious

during critical portions of the trial, the appellate court may presume that both prongs of the test have

been met. United States v. Cronic, 466 U.S. 648, 659 (1984); see also Burdine v. Johnson, 262 F.3d

336, 346 (5th Cir. 2001).

                Appellant argues that defense counsel’s complaints of fatigue during trial create a

presumption that defense counsel’s performance prejudiced appellant’s rights. Defense counsel filed

a motion for continuance based on his fatigue and inability to prepare the case before trial and

repeatedly stated to the court that he was fatigued during trial. However, no case law supports the

proposition that defense counsel’s mere assertions of fatigue are sufficient to raise a presumption of

prejudice and ineffective assistance of counsel. Cf. Burdine, 262 F.3d at 346 (holding that defendant

had been prejudiced where record suggested that defense counsel had actually been asleep during

portions of trial). Because nothing in the record suggests that defense counsel ever slept or was

absent from the trial at any time, we overrule appellant’s contention that defense counsel should be

presumed to have been ineffective. We now consider the balance of appellant’s ineffective assistance

of counsel claim.

                Appellant asserts that he received ineffective assistance of counsel because: (1) defense

counsel’s cross-examination of Carly Moore, an interview specialist working for child protective



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services, elicited damaging hearsay evidence; (2) defense counsel failed to object to statements made

by Moore that bolstered the State’s case; and (3) defense counsel improperly chose to cross-examine

Dr. Beth Nauert, a physician with special expertise in child abuse cases. To prove the first prong of

an ineffective assistance claim, we must decide whether the record establishes that counsel failed to

provide reasonably effective assistance. Strickland, 466 U.S. at 687-88; Hernandez, 926 S.W.2d at

55; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The appellant must

demonstrate that counsel’s performance was unreasonable under the prevailing professional norms

and that the challenged action was not sound trial strategy. Strickland, 466 U.S. at 688; Stafford v.

State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). Appellant must prove ineffective assistance by

a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

We do not evaluate the effectiveness of counsel in hindsight, but from counsel’s perspective at trial.

Strickland, 466 U.S. at 689; Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). We

assess the totality of the representation, rather than isolated acts or omissions. Garcia v. State, 887

S.W.2d 862, 880 (Tex. Crim. App. 1994); Mayhue v. State, 969 S.W.2d 503, 510 (Tex.

App.—Austin 1998, no pet.).

               The appellate court presumes that defense counsel has provided reasonable

professional assistance, and the defendant must present proof to overcome this presumption. Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We will not generally speculate about

counsel’s trial strategy. Jackson, 877 S.W.2d at 771; Delrio v. State, 840 S.W.2d 443 (Tex. Crim.

App. 1992). An appellant, however, may rebut the presumption of effectiveness by providing a

record from which we may determine that trial counsel’s performance was not based on sound



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strategy. Jackson, 877 S.W.2d at 771-72; Bohnet v. State, 938 S.W.2d 532, 536 (Tex. App.—Austin

1997, pet. ref’d.).

                On direct examination, the State elicited from Moore a description of her interviewing

techniques and the circumstances of her interview with the victim. Defense counsel only objected to

the State asking whether the victim was able to describe the position of her body had been in. Later,

during defense counsel’s cross-examination, Moore made several statements regarding the victim’s

description of events. These hearsay statements relayed the victim’s description of the abuse,

including identifying which parts of appellant’s body had touched her, reporting that appellant had

inserted his private part into hers, and stating that she called appellant’s private part a “ding-a-ling”

and a “thing.” Appellant would have us decide that counsel’s eliciting these statements constituted

ineffective assistance of counsel.

                Defense counsel’s conduct during Moore’s testimony reflects a choice to use Moore’s

statements as the basis for introducing the videotape of Moore’s interview with the victim. On voir

dire, outside the presence of the jury, Moore revealed that the victim had made allegations of abuse

against several men other than appellant. Defense counsel stated to the trial court that he intended

to offer the videotape of the victim to demonstrate that the victim had accused several other men of

sexually abusing her. Defense counsel hoped to establish that, although the victim had probably been

abused, she had not been abused by appellant. Although defense counsel’s efforts to introduce the

videotape of Moore’s interview with the victim were unsuccessful, the record shows that defense

counsel eventually succeeded in putting evidence before the jury that Bastrop County was, at the time

of trial, investigating allegations of abuse made by the same victim against a different individual.



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Given that the decision to allow Moore to make some hearsay statements and to allow the State to

ask questions about interviewing technique was taken in the context of attempting to offer Moore’s

videotaped interview of the victim into evidence, we cannot say that defense counsel’s strategic

decisions regarding Moore’s testimony were outside the scope of reasonable professional assistance.

               Appellant claims that defense counsel should not have cross-examined Nauert. The

court ruled that Nauert could not discuss any allegations of abuse made against individuals other than

appellant, except in explaining a medical diagnosis. The State qualified Nauert as an expert for the

purpose of discussing the physical manifestations of penetration in young children. On cross-

examination, defense counsel asked Nauert to discuss her examination of the victim, and Nauert

described the victim’s condition as “normal.” On redirect, the State elicited from Nauert that it is not

unusual for victims of abuse to have normal examinations. Appellant contends that, because defense

counsel elicited information regarding the examination and failed to have expert testimony prepared

to counter Nauert’s assessment of the victim’s condition, it was inappropriate to question Nauert.

However, proof of penetration was crucial to the State’s case, and defense counsel was able to

demonstrate that Nauert’s testimony did not prove that the victim had been assaulted. Indeed,

defense counsel emphasized in closing argument that Nauert’s testimony proved nothing regarding

the accusations against appellant. We cannot say that the decision to cross-examine Nauert regarding

the physical examination was unreasonable under prevailing professional norms. See Strickland, 466

U.S. at 688; Stafford, 813 S.W.2d at 506.

                In this case, we have no record from which to accurately discern counsel’s trial

strategy because no testimony was offered to support the ineffective assistance claim in the motion



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for new trial proceedings. See Jackson, 768 S.W.2d at 772 (Baird, J., concurring). We note that the

record suggests that each strategic decision challenged by the appellant appears to have had a

reasonable justification. We overrule points of error one through four.


Appellant’s Videotaped Interview

               Appellant next contends that the trial court abused its discretion in admitting

statements taken from the videotape of a non-custodial interview between the police and the

appellant. Appellant also argues that the defense counsel’s failure to keep the videotape out of the

record and subsequent decision to introduce the videotaped statements constituted ineffective

assistance of counsel.

               The victim was appellant’s granddaughter. Once appellant learned that there was an

investigation into his granddaughter’s allegations, he went to the police and consented to a non-

custodial interview, which was videotaped. During the interview, he revealed that during the 1980’s,

he had sexually abused his own daughters. Appellant apparently hoped that, by being candid about

the earlier incidents, he could show that he was not likely to have abused the victim. Describing his

thoughts regarding the earlier incident and his subsequent behavior, appellant stated, “To be honest

with you, I do have thoughts all the time about little girls.” He continued, “Those thoughts come into

my head, and I pray to God I won’t do it.” Appellant explained that he tried to avoid being in

situations where he might be tempted to molest young girls, saying, “I say, Buster, you know you

can’t put yourself in situations with other kids.” To emphasize his efforts not to put himself in a bad

situation, appellant stated, “I don’t spend the night with friends that have children.”




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                  Defense counsel consistently objected to the introduction of these statements as being

prejudicial. See Tex. R. Evid. 403. To prevail on this issue, appellant would have to show that the

court’s admission of the selected statements taken from the videotape was an abuse of discretion.

Dubose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996). It is not enough for us to

disagree with the trial court’s determination—to be reversed, the holding must be outside the “zone

of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(op. on reh’g).

                  The State offered the excerpted statements to demonstrate motive. See Tex. R. Evid.

404(b). The trial court carefully parsed the statements and ruled that each of them was sufficiently

probative to outweigh any prejudicial effects. These statements are admissions of a party defendant.

See Tex. R. Evid. 801(e)(2)(A). They tend to demonstrate motive because they indicate that

appellant was constantly thinking about the possibility that he might sexually abuse young girls. We

note that, as offered by the State, none of the statements indicates that the defendant took part in any

extraneous bad acts; they only indicate appellant’s admitted thoughts and motivations at the time of

the investigation. We will not intrude on the trial court’s discretion to allow into evidence recorded

statements made by a defendant and offered to demonstrate motive. We reject appellant’s claim that

the evidence was improperly admitted and overrule points five through ten.

                  When it became clear that certain portions of appellant’s videotaped statement were

going to be introduced into evidence, defense counsel preemptively offered the entire videotape.

Appellant claims that this decision constituted ineffective assistance of counsel because it revealed

to the jury that appellant had committed earlier acts of child abuse.



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               Appellant would have us second-guess defense counsel’s decision to introduce the

entire videotape, based on appellant’s contention that by showing the entire video to the jury defense

counsel did more harm than good. However, to prevail, appellant must demonstrate that, from

defense counsel’s perspective at the time of trial, the decision to introduce the videotape fell outside

of reasonable professional standards. Ex parte Kunkle, 852 S.W.2d at 505. Defense counsel had a

choice between allowing the State to produce these damaging statements on cross-examination or

introducing the statements himself in the best possible light. In opposing admission of the excerpts,

defense counsel argued that the excerpts were misleading when taken out of context. Introducing

the entire tape was an attempt by defense counsel to mitigate the damaging effect of the excerpts.

Choosing to introduce the entire videotape was a strategic decision and the record before us provides

no indication that it was professionally unacceptable. Without the record that would have been

developed in a hearing on a motion for new trial, appellant cannot overcome the strong presumption

that defense counsel’s actions were professionally acceptable. See Jackson, 768 S.W.2d at 772

(Baird, J., concurring). We reject appellant’s ineffective assistance claims regarding the videotaped

interview of the appellant and overrule points of error eleven and twelve.


Factual Insufficiency

                Appellant argues that contradictions between the statements of the victim and her

brother, a witness to the abuse, combined with inconsistencies within the victim’s own testimony,

created a situation in which no reasonable jury could have rendered a guilty verdict.

                In determining the factual sufficiency of the elements of the offense, the reviewing

court views all the evidence in a neutral light, rather than “in the light most favorable to the

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prosecution.” Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000). The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and

compares it with the evidence that tends to disprove that fact. Id.

               The inconsistencies cited by appellant go to the credibility of the various witnesses,

not to the underlying facts of the case. For example, while the victim’s brother testified that he had

been on the floor in the same room while a particular instance of abuse was taking place, the victim

remembered that none of her siblings had been in the room. Balancing the credibility of conflicting

testimony is within the fact finder’s discretion. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim.

App. 1981). We reject appellant’s factual insufficiency claim and overrule point of error thirteen.

               The judgment of the trial court is affirmed.




                                               Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: April 11, 2002

Do Not Publish




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