Affirmed and Memorandum Opinion filed December 13, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00668-CR

                         RICARDO LOPEZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1391842

                 MEMORANDUM                       OPINION
      Appellant Ricardo Lopez was found guilty of aggravated sexual assault of a
child under the age of 14. On appeal, appellant contends his trial lawyer’s failure to
object to testimony concerning recidivism and future dangerousness during the
punishment phase constituted ineffective assistance of counsel. We affirm.

                                   BACKGROUND
      A detailed discussion of the facts is unnecessary because appellant does not
challenge the jury’s finding of guilt. It suffices to say that appellant sexually
assaulted his 11-year-old stepdaughter, Jessica,1 many times over the course of a
week.

         Lawrence Thompson, Jr., Ph.D., testified for the State during the punishment
phase. Thompson is a clinical psychologist. At the time of trial, he had served for
about 11 years as the director of therapy and psychological service at the Harris
County Children’s Assessment Center. He has counseled survivors of childhood
sexual abuse for 15 years. Thompson has not counseled sex offenders, but he has
“a fair amount” of training regarding sex offenders and has talked with sex
offenders during visits to several treatment programs throughout the state. He did
not meet appellant or Jessica.

         The State questioned Thompson about treatment of sex offenders and their
possibility of reoffending in the future:

         Q.      [I]s this like a disease or ailment that can be cured, this desire to
                 have sex with children?

         A.      [W]e have no cure for sexual attraction to prepubescent
                 children. To the extent that we have an adult that is sexually
                 attracted to prepubescent children, clinically considered kids
                 sort of 13 years of age or below, we have no cycle therapy, no
                 cycle pharmacology, or medicine or anything that we can do to
                 change that sexual attraction. The quote-unquote treatment
                 focuses on . . . acknowledgment of the fact that that
                 inappropriate sexual impulse will always be there and
                 management of that impulse in a way that hopefully keeps the
                 person in a place where they are not able to act on it.

         ...

         Q.      Is there any treatment to ensure that this person will not
                 reoffend in the future?
         A.      No, there is no treatment that can guarantee that.

1
    Jessica is a pseudonym. See Tex. R. App. P. 9.10(a)(3).
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      Q.      . . . [H]ow is someone able to ensure that someone [is] not
              going to reoffend with someone who has this desire?

      A.      The only way to be certain the child is not going to be sexually
              abused is to have that person in prison.

      Q.      Now, and where — tell the jury, where is the best program for
              sex offenders located?

      A.      The best program I’m aware of is in the Texas Department of
              Criminal Justice. . . .

      ...

      Q.      Let me ask you this, Doctor: What are some of the dangers that
              the community is looking at if it’s not treated?
      A.      Abuse of more children.

The trial judge called a bench conference to express her concern with the State’s
line of questioning:

      Court         This is beginning to make me real nervous because it
                    invites the jury to speculate about crimes he might be
                    committing in the future.
      Prosecutor Yes, Your Honor.
      Court         And that’s kind of a gray area.
      Prosecutor Yes, Your Honor.

      Court         So, you know, some of this is fine; but I urge you to be
                    careful about something that — he has never even
                    interviewed this defendant?

      Prosecutor No, Your Honor.
      Court         So, I’m just telling you it’s making me nervous. I would
                    hate for this case to have to be retried.
      Prosecutor Yes, Your Honor.


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The State passed the witness without asking Thompson any more questions.

      Appellant’s lawyer cross-examined Thompson about appellant himself being
an untreated victim of sexual abuse. Counsel elicited testimony from Thompson
that a victim of sexual abuse not properly treated might later commit sexual abuse.

      Next, appellant’s counsel asked Thompson about the risk and frequency of
sexual assaults in the Texas Department of Criminal Justice. He explained to the
trial court his purpose in questioning Thompson about sexual assaults in prison:

      Court        What three points are you trying to make with this?
      Counsel      Well, the number of years he gets sentenced should not
                   be looked at in a vacuum. I mean, he gets sentenced to
                   that many years and the likelihood that many years he is
                   going to be sexually assaulted based on the report
                   [concerning sexual assaults in prison]. Also —

      Court        Are you trying to establish there is a likelihood he will be
                   sexually assaulted?

      Counsel      That my client, yes, Your Honor.

      Court        Okay. All right. Point 2?
      Counsel      Point 2, that becomes relevant in connection with the
                   therapy that he would get in the prison. So —

      Court        How does that jive with the therapy he has discussed?

      Counsel      Because that can impede the therapy.

      Court        Okay.

      Counsel      So, the longest [sic] he is in prison, the greater likelihood
                   that his therapy will be hindered or impeded on.

      Court        Okay.




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      Counsel      And the third point in the report indicates that those are
                   — the longest sentences are the ones that are most likely
                   to become victims of sexual abuse in prison.

The trial court allowed appellant’s counsel to pursue this line of questioning,
stating, “If they are requesting to hear about all the wonderful treatment and
therapy up there, they ought to hear about the bad stuff. It seems fair to me.”

       Appellant’s counsel questioned Thompson extensively about the likelihood
appellant would be sexually assaulted in prison and the effect of such an assault or
assaults on appellant’s sex-offender treatment. Thompson did not know the
statistical likelihood but agreed an assault could impede appellant’s treatment.

      The State rested at the conclusion of Thompson’s testimony. Appellant
called no witnesses and rested as well. During closing argument, appellant’s
lawyer urged the jury to consider appellant’s status as an untreated victim of sexual
assault in deciding his sentence. The jury assessed punishment of 45 years’
imprisonment.


                                     ANALYSIS
I.    Law on ineffective assistance of counsel
      We review claims of ineffective assistance of counsel under the standard set
forth in Strickland v. Washington, 466 U.S. 688 (1984). Under Strickland, the
defendant must prove (1) his trial counsel’s representation was deficient, and
(2) the deficient performance was so serious that it deprived him of a fair trial. Id.
at 687. Counsel’s representation is deficient if it falls below an objective standard
of reasonableness. Id. at 688. A deficient performance deprives the defendant of a
fair trial only if it prejudices the defense. Id. at 691–92. To show prejudice,
appellant must demonstrate there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
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different. Id. at 694. Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.
This test is applied to claims arising under both the United States and Texas
Constitutions. Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).
See also Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999)
(holding the two-pronged Strickland test applies to claims of ineffective assistance
of counsel during non-capital sentencing proceedings).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that counsel’s actions were reasonably
professional and motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to counsel’s
strategy, we will not conclude the defendant received ineffective assistance unless
the challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Rarely will the trial
record contain sufficient information to permit a reviewing court to fairly evaluate
the merits of such a serious allegation. See Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). In many cases, the defendant is unable to meet the first prong of
the Strickland test because the record on direct appeal is underdeveloped and does
not adequately reflect the alleged failings of trial counsel. See Mata v. State, 226
S.W.3d 425, 430 (Tex. Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be

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established by isolating one portion of counsel’s performance for examination. See
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Moreover, it is
not sufficient that the defendant show, with the benefit of hindsight, that counsel’s
actions or omissions during trial were merely of questionable competence. See
Mata, 226 S.W.3d at 430. Rather, to establish counsel’s acts or omissions were
outside the range of professionally competent assistance, the defendant must
demonstrate counsel’s errors were so serious that he was not functioning as
counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

II.   Appellant has not shown ineffective assistance.
      Appellant contends his lawyer provided ineffective assistance of counsel by
failing to: (1) object to Thompson’s testimony that appellant would pose a future
danger if he is not in prison, and (2) insist on a Daubert/Kelly expert hearing on the
issue of appellant’s future dangerousness.

      A.     No objection was necessary because Thompson’s testimony was
             admissible.
      A lawyer’s failure to object to evidence is not deficient performance if the
evidence was admissible. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App.
2002). Failure to object to evidence is deficient performance only if the trial judge
would have committed error in overruling the objection. Ex parte White, 160
S.W.3d 46, 53 (Tex. Crim. App. 2004).

      Evidence of “any matter the court deems relevant to sentencing” is
admissible in the punishment phase of a trial. Tex. Code Crim. Proc. Ann. art.
37.073 § 3(a)(1) (West 2013). “[T]he admissibility of evidence during ‘the
punishment phase of a non-capital trial is a function of policy rather than a
question of logical relevance.’” Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim.
App. 2006) (quoting Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App.

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2002)). A bifurcated trial, in which the factfinder hears evidence regarding
punishment only after the defendant has been found guilty, allows the factfinder to
“take off the blindfolds” so as to make “an enlightened determination of
punishment.” Davis v. State, 968 S.W.3d 372 (Tex. Crim. App. 1998).

      Thompson testified there is no cure or treatment for sexual attraction to
prepubescent children. He said the only way to ensure a child victim will not be
sexually assaulted again by a person is for that person to be in prison. The First
Court of Appeals considered nearly identical testimony by Thompson in Cavitt v.
State, No. 01-13-00900-CR, __ S.W.3d __, 2015 WL 1869499, *14 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d). Like appellant, Cavitt was found guilty of
sexually assaulting a child. Thompson made the following statement during the
punishment phase: “[T]o the extent that there is an inappropriate sexual attraction
to children, that inappropriate sexual attraction is there and is an issue in an
ongoing way.” Thompson also said the likelihood of reoffending depends on the
perpetrator, but the attraction cannot be cured. Id. at 14. On appeal, Cavitt asserted
his trial lawyer was deficient in failing to object to Thompson’s testimony. See id.
at 15. The court of appeals held Cavitt did not establish the trial court would have
erred in overruling an objection to the testimony. See id.

      Despite the holding in Cavitt, appellant alleges his lawyer should have
objected to Thompson’s testimony, which he characterizes as inadmissible
evidence of future dangerousness. In 1983, the Court of Criminal Appeals held that
evidence of future dangerousness “does not come within the gambit of permissible
testimony at the punishment stage of a non-capital case.” Reed v. State, 644
S.W.2d 479, 481 (Tex. Crim. App. 1983), superseded on other grounds, Tex. R.
Evid. 702. Reed relied on a previous version of article 37.07(3)(a) of the Code of
Criminal Procedure, which stated in relevant part:

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      Regardless of the plea and whether the punishment be assessed by the
      judge or the jury, evidence may be offered by the state and the
      defendant as to the prior criminal record of the defendant, his general
      reputation and his character.

Id. at 481 n.1 (quoting Tex. Code Crim. Proc. Ann. art. 37.07(3)(a) (West 1981)).
Article 37.07 was amended several times before appellant was tried. When
appellant was sentenced, article 37.07 provided in relevant part:

      Regardless of the plea and whether the punishment be assessed by the
      judge or the jury, evidence may be offered by the state and the
      defendant as to any matter the court deems relevant to sentencing,
      including but not limited to the prior criminal record of the
      defendant, his general reputation, his character, an opinion regarding
      his character, the circumstances of the offense for which he is being
      tried, and, notwithstanding Rules 404 and 405, Texas Rules of
      Evidence, any other evidence of an extraneous crime or bad act that is
      shown beyond a reasonable doubt by evidence to have been
      committed by the defendant or for which he could be held criminally
      responsible, regardless of whether he has previously been charged
      with or finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West 2013) (boldface added).

      “The seminal rule of statutory construction is to presume that the legislature
meant what it said.” State v. Vasilas, 187 S.W.3d 486, 488 (Tex. Crim. App. 2006).
We begin with the plain language of a statute in order to discern its meaning. Id.
Two principles of statutory construction compel us to conclude that article 37.07
does not prohibit evidence of the possibility of future assaults by a sex offender.

      First, the list of permissible evidence in section 3(a)(1) is not exhaustive.
“‘Includes’ and ‘including’ are terms of enlargement and not of limitation or
exclusive enumeration, and the use of the terms does not create a presumption that
components not expressed are excluded.” Tex. Gov’t Code Ann. § 311.005(13)
(West 2013). The addition of “including” in section 3(a)(1) “clarif[ies] that the


                                          9
article’s list of admissible evidence [is] not exhaustive and other evidence is
admissible so long as it is deemed relevant to sentencing.” Grunsfeld v. State, 843
S.W.2d 521, 524 (Tex. Crim. App. 1992) (italics in original), superseded on other
grounds, Tex. Code Crim. Proc. Ann. art. 37.07 (West 1994).

      The First Court of Appeals reached the same conclusion in Peters v. State,
31 S.W.3d 704 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The court
considered the admissibility of evidence of future non-dangerousness, specifically
evidence of incest-offender recidivism rates, which the defendant offered to
establish he was suitable for probation. See id. at 707–08. The court concluded that
“nothing in article 37.07, section 3(a) makes [such evidence] inadmissible per se.”
Id. at 717. See also Sanchez v. State, No. 01-14-00809-CR, 2015 WL 7455782, *7
(Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet.) (mem. op.) (not
designated for publication) (noting expert testimony on issues such as recidivism is
“admissible as a proper consideration for sentencing under article 37.07”).

      Second, another part of article 37.07 expressly prohibits evidence of future
dangerousness based on certain facts, namely a defendant’s race or ethnicity:

      Notwithstanding Subdivision (1), evidence may not be offered by the
      state to establish that the race or ethnicity of the defendant makes it
      likely that the defendant will engage in future criminal conduct

Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(2) (West 2006). The express mention
of one thing is tantamount to an exclusion of all others. State v. Sutton, PD-1051-
15, __ S.W.3d __, 2016 WL 4793141, *2 (Tex. Crim. App. Sept. 14, 2016).
Accordingly, subsection (a)(2)’s inclusion of certain facts (race and ethnicity) as a
basis for prohibition of evidence of future dangerousness is tantamount to an
exclusion of all other facts (including status as a sex offender) as a basis for
prohibition of evidence of future dangerousness.


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      Appellant has not shown the trial court would have erred in overruling an
objection to Thompson’s testimony. Therefore, his lawyer’s lack of objection to
that testimony does not constitute ineffective assistance of counsel. Ortiz, 93
S.W.3d at 93; White, 160 S.W.3d at 53.

      B.     The record is silent on counsel’s decision not to challenge
             Thompson as an expert.
      Appellant contends his lawyer should have challenged Thompson’s
qualification to testify about sex offenders because Thompson treats only child
victims of sexual assault, not perpetrators. We assume for the sake of argument
that the trial court would have sustained a challenge to Thompson’s qualifications.

      A lawyer may handle unfavorable expert testimony in several ways. He may
raise a Daubert/Kelly challenge to the expert’s qualifications or the reliability of
the expert’s conclusions and move to exclude the testimony. See Tex. R. Evid. 702;
Daubert v. Merrell Dow Pharms., 923 U.S. 549 (1995); Kelly v. State, 824 S.W.2d
568 (Tex. Crim. App. 1992). He may offer an expert of his own to refute the
testimony. See Humphrey v. State, No. 14-15-00226-CR, __ S.W.3d __, 2016 WL
4253981, *3 (Tex. App.—Houston [14th Dist.] Aug. 11, 2016, pet. filed). Or, he
may seek to demonstrate the flaws in the expert’s testimony through cross-
examination. See id.; Josey v. State, 97 S.W.3d 687, 696 (Tex. App.—Texarkana
2003, no pet.).

      Appellant’s lawyer cross-examined Thompson extensively about the
likelihood appellant would be sexually assaulted in prison. Counsel attempted to
admit several documents on the likelihood that a prisoner would be sexually
assaulted in prison. During closing argument, counsel relied on Thompson’s
testimony regarding sexual assaults involving prisoners. Ultimately, appellant’s
lawyer urged the jurors to decide that “if [appellant] is sentenced to too long a

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term, we could have somebody who is successfully treated, who completes,
achieves the goals of a treatment provider at TDC who could then be victimized
again in the system.” The record is silent on why counsel elected to cross-examine
Thompson rather than seek to exclude his testimony or call another expert to rebut
Thompson’s testimony. However, counsel’s reliance on Thompson’s testimony as
a basis to convince the jury to reject a substantial prison term is a strategy readily
apparent from this record.

      We may not view counsel’s conduct or strategy through the “distorting
effects of hindsight.” Strickland, 466 U.S. at 689. Rather, appellant must overcome
the “strong presumption” that counsel’s conduct falls “within the wide range of
reasonable professional assistance.” On this silent record, we must presume
appellant’s lawyer made a sound strategic decision. See Jackson, 877 S.W.2d at
771. Appellant has not satisfied his burden to show his lawyer’s decision not to
challenge Thompson as an expert was “so outrageous that no competent attorney
would have engaged in it.” Goodspeed, 187 S.W.3d at 392.

      Because appellant has not established his lawyer’s performance was
deficient, we do not reach the question of whether the performance prejudiced
appellant’s defense.

                                   CONCLUSION
       We overrule appellant’s issue and affirm the judgment of the trial court.




                                       /s/     Ken Wise
                                               Justice

Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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