                          NUMBER 13-12-00221-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

SUSAN KATHARINE STEWART,                                                Appellant,

                                             v.

THE STATE OF TEXAS,                                                     Appellee.


                    On appeal from the 377th District Court
                          of Victoria County, Texas.


                          MEMORANDUM OPINION
   Before Chief Justice Valdez, and Justices Benavides, and Perkes
              Memorandum Opinion by Justice Perkes
       Appellant Susan Katharine Stewart appeals her conviction of three counts of injury

to a child, first-degree felonies, see TEX. PENAL CODE ANN. § 22.04(a)(2), (e) (West 2011),

and three counts of aggravated sexual assault of a child, also first-degree felonies, see id.
§ 22.021(a)(1)(B)(ii), (2)(B).1 The jury found appellant guilty of each count and assessed

punishment at six life imprisonments in the Texas Department of Criminal Justice,

Institutional Division. The sentences are to run concurrently. By four issues, which we

reorganize as two, appellant complains (1) trial counsel rendered ineffective assistance;

and (2) her sentence is cruel and unusual punishment. We affirm.

                                               I. BACKGROUND2

        Appellant’s convictions involve the injury and sexual assault of her son, T.S.3 The

State presented evidence showing appellant repeatedly delivered T.S. to a known sex

offender, Gerald Graves, with whom appellant resided with for a short period and relied

upon for financial support.                 Karen Smithey, a child protective services (CPS)

caseworker, testified that when T.S. was four years old, he complained that Graves

“pinched on his penis” and poked “down there with a stick.” CPS created a safety plan

whereby appellant agreed not to allow Graves access to T.S.                              Appellant, however,

ignored the safety plan and continued to take T.S. to Graves’s house for unsupervised

visits. She further ignored T.S.’s repeated outcries that Graves was sexually assaulting




        1
           Appellant was convicted of three counts of injury to a child, premised on appellant’s allowing
Gerald Graves continued unsupervised access to T.S., and failing to make a report to law enforcement,
after T.S. complained of being sexually assaulted by Graves. Appellant was convicted of three counts of
aggravated sexual assault for “acting alone or as a party” to T.S.’s sexual assault on three separate
occasions. Graves was separately tried and convicted on three counts of aggravated sexual assault. He
received a life sentence for his crimes. See generally Graves v. State, Nos. 13-11-00617-CR &
13-11-00618-CR (Tex. App.—Corpus Christi June 27, 2013, no pet. h.) (mem. op.), available at
http://www.13thcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=21060.
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        3
            We refer to the child sexual assault victim by his initials to protect his identity.
                                                          2
him. In 2005, when T.S. was eight years old, CPS took custody of T.S. In 2007,

appellant’s parental rights to T.S. were terminated.

         In 2010, T.S. made an outcry to Brenda Whitefield, his foster mother, detailing how

Graves would “put his penis in my bottom . . . .” T.S. next told his counselor, Catherine

Parsons-Key, how Graves anally penetrated him, and how Graves pressured T.S. into

performing oral sex on him. At trial, T.S. testified he told appellant about the sexual

assaults, but that she “[j]ust gave me medication[]” for the injuries inflicted by the anal

penetration. Appellant did not stop taking T.S. to Graves’s house.

         T.S. testified that appellant took him to Graves’s house almost every Saturday.

Whitefield recalled that T.S. told her, “I would go over there [to Graves’s house] on

Saturday and then in the afternoon, I would go home or the next day I would go home, and

my mom would put medicine in my bottom.” Parsons-Key affirmed that, based on her

conversation with T.S., she believed that appellant treated T.S. with suppositories on a

regular basis. Smithey testified that, based on reports in the CPS case file, appellant

forbade T.S. from telling anyone that he had seen Graves or anything about Graves’s

penis.    Smithey further stated that CPS was informed that appellant asked various

individuals to lie for her, and to say that T.S. stayed with them, rather than Graves, over

the weekends.

                     II. INEFFECTIVE ASSISTANCE OF COUNSEL

         By her first issue, appellant complains that trial counsel provided constitutionally

ineffective assistance. See U.S. CONST. amend VI. Appellant contends trial counsel

was constitutionally deficient because she failed to: (1) have an expert witness testify


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regarding appellant’s limited intellectual and social abilities; (2) discuss Graves’s criminal

case and the termination of appellant’s parental rights during voir dire; and (3) obtain a

ruling on the date of T.S.’s outcry. No motion for new trial or any other post-judgment

motion asserting ineffective assistance of counsel was filed or otherwise considered by

the trial court.

A.     Standard of Review

       To prevail on an ineffective assistance of counsel claim, appellant 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

counsel’s representation is highly deferential, and 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

counsel’s reasoning, or lack thereof, to rebut the presumption.         Moreno v. State, 1

S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref’d).              To overcome the

presumption, counsel’s conduct or action needs to be “so outrageous that no competent

attorney would have engaged in it.” Mata v. State, 226, S.W.3d 525, 430 (Tex. Crim.

App. 2007). 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.


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B.      Calling Witnesses

        By her first sub-issue, appellant argues trial counsel was ineffective for failing to

call an expert witness to testify regarding appellant’s intellectual and social capabilities

with respect to the offenses charged against her. 4                  Appellant, however, offered no

evidence regarding why her trial counsel did not call an expert witness or otherwise show

why it would be objectively unreasonable not to call such a witness.

        “The decision [of] whether to present witnesses is largely a matter of trial strategy.”

Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d)

(citing Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d)); Smith v. State, 84 S.W.3d 36, 42 (Tex. App.—Texarkana 2002, no pet.).

Appellant does not give sufficient record evidence to rebut the presumption that her

counsel’s actions were based on sound trial strategy. See Ex parte Flores, 387 S.W.3d

626, 633 (Tex. Crim. App. 2012). Neither does appellant show that that there is a

reasonable probability that, but for counsel’s deficient performance, the result of the trial

would have been different. See Lopez, 343 S.W.3d at 142; Moreno, 1 S.W.3d at 864.

We overrule appellant’s first subissue.

C.      Voir Dire

        By her second sub-issue, appellant argues about trial counsel’s performance

during voir dire. Appellant asserts that “a well phrased set of questions could have

isolated any people who recalled the Graves case” and that “asking the jury panel about

the issue of termination of parental rights would have isolated any people who might have

        4
           As support, appellant identifies a psychological evaluation that was admitted as a “defense
exhibit” during the trial and related trial testimony, showing that she generally suffers from personality and
depression disorders.
                                                      5
been sensitive to child rearing issues and therefore be prejudiced against Appellant

because her parental rights had been terminated.”5

        Assuming without deciding that counsel’s omission of these topics was deficient,

appellant does not present any evidence showing that any potential jurors recalled the

Graves case. Appellant further fails to identify any juror who was prejudiced against her,

either because of her association with Graves or the child termination issues.

Accordingly, because appellant has not shown that the trial’s outcome would have been

different had her trial counsel discussed these two subjects during voir dire, we overrule

appellant’s second subissue. See Lopez, 343 S.W.3d at 142; Moreno, 1 S.W.3d at 864.

D.      Outcry Date

        By her third sub-issue, appellant argues trial counsel was ineffective because she

did not obtain the trial court’s ruling “regarding the precise date” of the child’s outcry.

        Appellant’s briefing focuses on trial counsel’s objections regarding to whom T.S.

first made his outcry. See TEX. CRIM. PROC. CODE ANN. art. 38.072 § 2(a)(3) (West Supp.

2011) (requiring outcry witness to have been the first person eighteen years or older to

whom the victim made an outcry). Appellant’s counsel objected to the admission of

Whitefield’s outcry testimony, arguing that T.S. made an outcry to Parsons-Key before

Whitefield. The State, however, asserted that T.S. made his outcry to Whitefield. The

trial court held that Whitefield’s outcry testimony could go to the jury, and gave appellant a


        5
          Appellant attached the text of a radio commercial to her brief and referred the court to evidence in
another criminal appeal to support her argument. Inasmuch as they are not part of the record on appeal,
we are not permitted to consider them. See Ramirez v. State, 104 S.W.3d 549, 551 n. 9 (Tex. Crim. App.
2003) (en banc) (citing Farris v. State, 712 S.W.2d 512, 515–16 (Tex. Crim. App. 1986)); Hartman v. State,
198 S.W.3d 829, 842–43 (Tex. App.—Corpus Christi 2006, pet. struck); Witkovsky v. State, 320 S.W.3d
425, 428 (Tex. App.—Fort Worth 2010, pet. dism’d).
                                                      6
running objection to Whitefield’s testimony. The trial court noted, “[W]e can take up your

other objections as those witnesses come up to testify.”

        The State subsequently called Parsons-Key to testify. Before she testified, the

trial court, outside the presence of the jury, asked the State to clarify how her testimony

would differ from Whitefield’s. The State explained that Parsons-Key was testifying as a

professional counselor, not as an outcry witness.6 The record shows that Parsons-Key

began counseling T.S. in “either the latter part of 2007 or early part of 2008,” but that T.S.

did not discuss his sexual abuse with Parsons-Key until after he made an outcry to

Whitefield in March 2010.

        Appellant has failed to prove by a preponderance of the evidence that trial

counsel’s performance fell below “an objective standard of reasonableness under the

prevailing professional norms.” Lopez, 343 S.W.3d at 142. Parsons-Key’s testimony

and “progress note,” which the trial court admitted, indicates that T.S. made an outcry to

Whitefield before he discussed it with Parsons-Key.                   Accordingly, it was entirely

reasonable for appellant’s attorney to not further challenge the admissibility of

Whitefield’s testimony on the grounds that T.S. first made an outcry to Parsons-Key

before Whitefield, especially after the State emphasized Parsons-Key’s status as a

counselor rather than an outcry witness. Moreover, appellant has failed to explain how

the trial’s outcome would have been different had the trial court made a ruling regarding

the date that T.S. made his outcry. Appellant does not show how this information would

        6
            “Texas appellate courts have allowed licensed professional counselors and psychotherapists to
testify under Texas Rule of Evidence 803(4).” Taylor v. State, 263 S.W.3d 304, 311 (Tex. App.—Houston
[1st Dist.] 2007), aff’d, 268 S.W.3d 571 (Tex. Crim. App. 2008); see Wilder v. State, 111 S.W.3d 249, 256
(Tex. App.—Texarkana 2003, pet. ref’d) (allowing testimony from licensed professional counselor under
rule 803(4)).
                                                   7
have precluded or undermined Whitefield’s or Parsons-Key’s testimony or otherwise lead

to a different result. See Lopez, 343 S.W.3d at 142; Moreno, 1 S.W.3d at 864. We

overrule appellant’s third subissue.

                         III. CRUEL AND UNUSUAL PUNISHMENT

       By her second issue, appellant argues that six concurrent life sentences constitute

cruel and unusual punishment. See U.S. CONST. amend VIII; TEX. CONST. art. 1, § 13.

Appellant did not object to the sentences at trial. Appellant, however, did make this

argument in her motion for new trial, which was filed on the same day as her notice of

appeal. The record, however, does not contain the trial court’s ruling on the motion, and

no hearing was held thereon.

       To preserve an error for appellate review, an appellant must make a timely,

specific request, objection, or motion and obtain a ruling from the trial court. TEX. R. APP.

P. 33.1. “This requirement applies even to errors of constitutional dimension, including

those asserting that a sentence is cruel and unusual.” Richardson v. State, 328 S.W.3d

61, 72 (Tex. App.—Fort Worth 2010, pet. ref’d) (citing Henderson v. State, 962 S.W.2d

544, 548 (Tex. Crim. App. 1997); Solis v. State, 945 S.W.2d 300, 301 (Tex.

App.—Houston [1st Dist.] 1997, pet. ref’d)).

       Because appellant did not object during the trial, preservation could only be

effectuated through her new-trial motion. “To preserve an issue by motion for new trial, a

defendant must present the motion to the trial court.” Richardson, 328 S.W.3d at 61

(citing TEX. R. APP. P. 21.6). The mere filing of a motion for new trial is insufficient for

presentment; a defendant must ensure that the trial court has actual notice of it. See


                                               8
Carranza v. State, 960 S.W.2d 76, 79–80 (Tex. Crim. App. 1998) (en banc) (interpreting

predecessor rule, which is identical to 21.6); Richardson, 328 S.W.3d at 61; see also

Guilbeau v. State, No. 06-10-00140-CR, 2011 WL 1458701, at *2 (Tex. App.—Texarkana

Apr. 18, 2011, pet. ref’d) (mem. op., not designated for publication). Actual notice may

be evidenced by the judge’s ruling, signature or notation on the proposed order, or by a

hearing set on the court’s docket. See Carranza, 960 S.W.2d at 79; Richardson, 328

S.W.3d at 61; see also Guilbeau, 2011 WL 1458701, at *2.

       Appellant failed to show that the trial court had actual notice of her motion for new

trial, and thus failed to preserve this claim for review. See TEX. R. APP. P. 26.1, 33.1;

Richardson, 328 S.W.3d at 61 (holding unpreserved defendant’s claim of cruel and

unusual punishment where defendant failed to object at trial and filed but did not present

motion for new trial). We overrule appellant’s second issue.

                                      IV. CONCLUSION

       We affirm the trial court’s judgment.


                                                    GREGORY T. PERKES
                                                    Justice

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

Delivered and filed the
11th day of July, 2013.




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