                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00161-CR

CLIFFORD WAYNE GREEN,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1908-C1


                           MEMORANDUM OPINION


       Clifford Wayne Green was indicted on two counts of aggravated sexual assault of

a child. The jury returned a verdict of not guilty as to Count 1 and a verdict of guilty as

to Count 2. The jury assessed punishment at 35 years confinement and a $10,000 fine. On

December 23, 2015, this Court issued an opinion reversing Green’s conviction and

remanding the cause to the trial court. The State filed a petition for discretionary review
with the Court of Criminal Appeals. The Court of Criminal Appeals reversed this Court’s

judgment and remanded the case for further consideration in this Court. We affirm.

                                      Background Facts

         M.J. testified that she lived with her mother and Appellant, her mother’s

boyfriend. In February 2000 when M.J. was in the seventh grade, they moved to Lorena,

Texas. M.J. testified that when she was in eighth grade she failed a test at school, and she

asked Appellant to sign the test for her because she did not want to get in trouble with

her mother. Appellant told her he would sign the test, but she had to do “exercises” for

him. M.J. testified that Appellant laid down on his back and told her to pull down her

underwear. Appellant then told M.J. to sit on his face, and he touched her private parts

with his tongue. M.J. said that she felt pain and that she thought Appellant used his

penis, but she could not say for certain that he used his penis.

         M.J. testified that Appellant told her not to tell anyone or he would hurt her mother

and blame her uncle who was recently released from prison. M.J. stated that Appellant

told her he was on parole for murder. Appellant moved out of the house several weeks

later.

         In 2012, when M.J. was a senior in college, she told her pastor what happened with

Appellant, and the pastor encouraged M.J. to tell her mother. M.J. told her mother a few

weeks later, and they later reported the incident to the sheriff’s department.




Green v. State                                                                          Page 2
                                   Ineffective Assistance

        Appellant argues that he “received ineffective assistance of counsel because he

was denied conflict-free representation because Appellant’s consulting expert testified as

a witness for the State to Appellant’s detriment.” The State called Dr. William Lee Carter

to testify at trial. The State noted that Dr. Carter had not counseled M.J. in this case, but

the State had asked Dr. Carter to look at their case and help figure out the issues where

the jury would need assistance. The State asked Dr. Carter if he had evaluated Appellant,

and Dr. Carter responded that he had not. Dr. Carter testified about the relationship

between the accuser and the person being accused. Dr. Carter explained how the

relationship between the accuser and the person accused may cause the child not to tell

anyone about the abuse.

        The State questioned Dr. Carter about Appellant’s relationship with M.J. and how

the relationship might have affected M.J.’s decision not to disclose the offense. Dr. Carter

testified that 50 to 70 percent of child victims do not report sexual abuse and “carry their

secret well on into adulthood.”

        After Dr. Carter had testified for approximately 30 minutes, the Appellant’s trial

counsel objected to Dr. Carter’s testimony. There was a discussion out of the presence of

the jury, and Appellant’s trial counsel revealed for the first time that Dr. Carter had

evaluated Appellant as a consulting defense expert. The State informed the trial court

that it had given Appellant’s trial counsel notice of its intention to call Dr. Carter at trial.


Green v. State                                                                            Page 3
Appellant’s trial counsel responded that he assumed Dr. Carter would inform the State

Appellant had retained him in this case. The trial court noted that Dr. Carter had spent

30 minutes testifying for the State “when all this time you knew that he had examined

your client, and I certainly didn’t know it. The State didn’t know it, so … I’m really on

the horns of a dilemma here.” Appellant’s trial counsel stated that he did not say

anything when the State called Dr. Carter because he was not sure for what purpose they

were calling him.

        Dr. Carter stated outside the presence of the jury that he had forgotten that he did

an evaluation of Appellant and that he is not relying on that evaluation in his testimony.

The trial court asked Dr. Carter whether he recalled anything about the evaluation that

would affect his testimony. Dr. Carter responded that he did not.

        The trial court stated:

        Here’s what we’re going to do. Since the proverbial cat is already out of the
        bag, I’m not going to try and put it back in. I’m going to let Dr. Carter go
        ahead and testify as he would in any of the many cases he’s testified to in
        this courtroom and in this courthouse. Dr. Carter if there’s any question
        you’re asked by the State or, I guess, by anybody that triggers something in
        your mind that you’ve got an ethical conflict or that you’re violating any
        privileged information between you and the Defense, you say ‘I think I
        need to talk to you Judge, outside the presence of the jury.’

                                            …
        Well, this is a fine mess. All right. We’re going to continue as though
        nothing had happened. I wouldn’t know how to - - any problem we’ve got,
        I wouldn’t know how to cure it now, anyway. Anybody have any other
        suggestions? All right. Hearing none, we’re going to take a break. I’ve got
        a headache.


Green v. State                                                                          Page 4
Appellant’s trial counsel requested a mistrial. The trial court denied the mistrial and

stated:

          Had you made the Court aware of any possible conflict at the - - when Dr.
          Carter came in and testified, I might have to consider that a little more
          strongly, but at this point, as I said, I don’t know how to put the cat back in
          the bag except to instruct everybody, and I - - as I think I already have, that
          if Dr. Carter feels like he’s been asked a question that - - that in any way
          triggers his memory of anything the Defendant told him that he’ll call that
          to the attention of the Court, and we’ll get outside the presence of the jury
          and discuss it. I don’t think I can penalize the State for anything because
          they - - they had no idea about the situation any more than I did.

          Dr. Carter continued his testimony. He testified about other reasons a child victim

might not report abuse. Dr. Carter testified why a child might tell a peer about the abuse

first, as M.J. did in this case, and also about the significance of telling a pastor as M.J. did

in this case. Dr. Carter agreed with the State that in telling her pastor, M.J. did not seem

to have an agenda or a motive. The State also questioned Dr. Carter on the reliability of

M.J.’s statement.

          Dr. Carter discussed the characteristics of sex offenders and things he notices in

evaluating sex offenders. The State questioned Dr. Carter about what he observed when

watching the videotaped interview Appellant gave at the sheriff’s department and asked

Dr. Carter to evaluate Appellant’s statements and criminal history. Dr. Carter further

testified about the percentage of false allegations of sexual abuse and that M.J. had no

motive or agenda to make a false allegation. Dr. Carter agreed with the State that this

case falls into the percentage of cases that are unlikely to be false allegations.


Green v. State                                                                              Page 5
          In our December 23, 2015 opinion, this Court found that Appellant received

ineffective assistance of counsel. The Court of Criminal Appeals found that this Court

erred in finding that Appellant received ineffective assistance of counsel, and remanded

the case for consideration of Appellant’s complaint under Cuyler v. Sullivan, 446 U.S. 335

(1980).

          Appellant argues that he was denied conflict-free representation as set out in

Cuyler. Appellant does not complain that his attorney-client privilege was violated by

Dr. Carter’s testimony at trial, but rather that his right to conflict-free representation must

necessarily extend to trial counsel experts such as Dr. Carter. Appellant contends that

under Cuyler the right to conflict-free representation must include all of an accused’s

defense team, including a consulting expert.

          In Cuyler, the defendant argued that he was denied the effective assistance of

counsel because his lawyers had a conflict of interest in that they also represented his

codefendants. Cuyler v. Sullivan, 446 U.S. at 345. The Court held that in order to establish

a violation of the Sixth Amendment, a defendant who raised no objection at trial must

demonstrate that an actual conflict of interest adversely affected his lawyer's

performance. Cuyler v. Sullivan, 446 U.S. at 348. Appellant argues because Dr. Carter was

both a consulting expert for the defense and a testifying expert for the State, he had an

actual conflict of interest. He contends that the rule in Cuyler extends to the entire defense




Green v. State                                                                           Page 6
team and that by his trial counsel allowing the testimony, he received ineffective

assistance.

        Appellant complains of Dr. Carter’s conflict, but applies the conflict to his trial

counsel’s failure to object to Dr. Carter’s testimony. We find that this is not the type of

conflict Cuyler addressed. In Cuyler, the Court held that it is a violation of the Sixth

Amendment when the attorneys’ conflict adversely affected the attorneys’ performance.

Appellant is not arguing that Dr. Carter’s conflict adversely affected Dr. Carter’s

performance, but rather Dr. Carter’s conflict adversely affected his trial counsel’s

performance. That is already protected by the Sixth Amendment and Strickland v.

Washington, 466 U.S. 668 (1984)1. Under the facts of this case, we decline to hold that

Cuyler extends to expert witnesses hired by the defense.

        Appellant also argues that in Ake v. Oklahoma, 470 U.S. 68 (1986),the Supreme

Court recognized the requirement of an independent expert and that right is applicable

to his Sixth Amendment right to conflict-free representation under Cuyler. In Ake, the

Court held that an indigent defendant has a constitutional right to a court-appointed

expert in some cases. Ake v. Oklahoma, 470 U.S. at 83. We do not find Ake to be applicable

to Appellant. Appellant retained Dr. Carter as an expert, and the State was unaware that




1 We note that the Court of Criminal Appeals found that this Court erred in finding Green received
ineffective assistance of counsel under the standards in Strickland v. Washington.
Green v. State                                                                             Page 7
Dr. Carter had consulted with Appellant until trial. Appellant was not denied access to

an expert to aid in his defense. We overrule the first issue.

                                 Admission of Evidence

        In his second issue, Appellant complains that the trial court erred in admitting

testimony that he was on parole. In determining whether a trial court erred in admitting

evidence, the standard for review is abuse of discretion. McDonald v. State, 179 S.W.3d

571, 576 (Tex.Crim.App. 2005). A trial court abuses its discretion when its decision is so

clearly wrong as to lie outside that zone within which reasonable persons might disagree.

Id.

        Before opening statements, the State informed the trial court it would get into an

extraneous matter during opening statements and during the presentation of evidence.

The State intended to offer testimony that Appellant told M.J. that he was on parole for

murder. M.J. was afraid of Appellant and that contributed to her delayed outcry.

Appellant was not actually on parole for murder, but for aggravated robbery. The State

did not intend to offer evidence of why he was on parole, but rather just that he was on

parole and M.J.’s knowledge of his parole status contributed to her delayed outcry. The

trial court found that the evidence was admissible and that the probative value

outweighed the prejudicial effect. The trial court overruled Appellant’s objections to the

evidence and granted Appellant a running objection.




Green v. State                                                                      Page 8
        For extraneous offense evidence to be admissible under both Rule 404(b) and Rule

403, that evidence must satisfy the following two-prong test: 1) whether the extraneous

offense evidence is relevant to a fact of consequence in the case apart from its tendency

to prove conduct in conformity with character; and 2) whether the probative value of the

evidence is sufficiently strong so that it is not substantially outweighed by unfair

prejudice. Johnston v. State, 145 S.W.3d 215, 220 (Tex.Crim.App. 2004).

        The State introduced the evidence that Appellant was on parole to explain M.J.’s

delayed outcry. An extraneous offense is admissible to explain why a victim of sexual

assault did not make a prompt outcry. See Brown v. State, 657 S.W.2d 117, 119

(Tex.Crim.App.1983); Wilson v. State, 90 S.W.3d 391, 394 (Tex.App.-Dallas 2002, no pet.).

We find that the trial court did not abuse its discretion in allowing the evidence that

Appellant told M.J. he was on parole. We overrule the second issue.

                                       Conclusion

        We affirm the trial court’s judgment.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 10, 2018
Do not publish
[CRPM]
Green v. State                                                                     Page 9
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