Affirmed and Memorandum Opinion filed November 5, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00702-CR

                      KENNETH RAY MAYS, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 212th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 17CR0754

                  MEMORANDUM OPINION

      A jury convicted appellant Kenneth Ray Mays of continuous sexual abuse of
a child and assessed punishment at thirty years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice. Appellant challenges his
conviction, asserting that his trial counsel was ineffective in two respects: (1) by
failing to object to alleged victim impact testimony during the guilt-innocence phase
of trial; and (2) by failing to cross-examine the child victim. Because the record
does not support appellant’s assertions of ineffective assistance, we affirm the trial
court’s judgment.

                                    Background

      A grand jury indicted appellant for continuous sexual abuse of a child under
fourteen, D.W., occurring from 2007 through 2011. Appellant is D.W.’s brother-in-
law. Appellant has been married to D.W.’s oldest sister, Latoya, for most of D.W.’s
life. Latoya’s son, K.S., is appellant’s stepson. K.S. is the same age as D.W., and
they were frequently together as young children. According to D.W., appellant
taught her and K.S. how to do “sexual stuff.” D.W. described an incident that
occurred when she was five or six years old during which appellant put her and K.S.
on top of each other and told them to “do it.” Appellant told the children to take
their bottoms off and explained to them “how to hump.” In another incident,
appellant made K.S. and D.W. “hump” each other.

      D.W. recounted another time when she was alone in the house with appellant,
and appellant touched her breasts and “private parts” with her pants down. D.W.
also described an occasion where appellant taught her how to get on top of him and
“jump” up and down. During this incident, appellant then got on top of D.W. and
moved up and down. D.W. described other incidents when neither she nor appellant
had clothes on, and D.W. stated that appellant “penetrated” her. D.W. also described
an incident during which appellant “took turns” with K.S. and D.W.; one of the
children was on the bed, while the other was in a corner facing away. D.W. saw
K.S. lying down when it was his “turn.” When the children switched, appellant and
D.W. “humped.”

      Several years later, D.W. disclosed some of the abuse to her mother, Tina. A
few months later, she revealed more of the abuse to one of her sisters. Because of
what D.W. revealed, Tina took her to a pediatrician and reported the abuse to the
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LaMarque Police Department (“LMPD”). After the report, the LMPD investigated
the allegations. As part of the LMPD investigation, appellant provided a voluntary
statement. He denied all of D.W.’s sexual allegations.

      D.W. spoke to a forensic interviewer at the Children’s Assessment Center.
During the interview, D.W. described numerous instances of sexual abuse. D.W.
reported that the incidents began when she was around age five and included
appellant’s sexual touching, appellant’s teaching D.W. and K.S. to do sexual things,
appellant’s penetration of D.W.’s vagina with his penis, and appellant’s saying
sexually suggestive things. D.W. also underwent a sexual assault exam, but the
exam revealed nothing remarkable.

      After D.W. disclosed the abuse, her behavior changed; according to Tina,
D.W. became very emotional, sad, and depressed, as well as expressing suicidal
thoughts. Tina took D.W. to a therapist to help her deal with the sexual abuse. D.W.
revealed to her therapist, Shrabhi Jagdis, that she was having nightmares, had trouble
sleeping, and had trouble at school. Tina told Jagdis that D.W. was anxious,
depressed, did not like sleeping alone, and experienced suicidal thoughts. During
the guilt-innocence phase of appellant’s trial, Jagdis testified that D.W. suffers from
post-traumatic stress disorder (“PTSD”). Jagdis also detailed the treatment plan she
developed with D.W., which included helping D.W. develop skills and tools by
talking about the abuse so that D.W.’s symptoms would be reduced over time.
Although Jagdis acknowledged that D.W.’s behavior could be consistent with
something other than PTSD, Jagdis stated she believed D.W. suffered from PTSD
due to sexual abuse trauma.

      D.W.’s sisters did not want to talk to the police or the district attorney, nor did
they want to testify at trial. D.W. knew her sisters did not support her. In fact,
Latoya did not leave appellant after D.W. revealed the ongoing abuse. When Latoya

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testified at trial, she was still married to appellant. Additionally, K.S. testified that
he loves appellant and did not remember anything sexual happening; he denied that
appellant made him and D.W. touch each other.

          After hearing all the evidence, a jury convicted appellant of continuous sexual
abuse of a child and sentenced him to thirty years’ confinement. Appellant did not
file a motion for new trial following his conviction. This appeal timely followed.

                                         Analysis

A.        Ineffective Assistance of Counsel

          We examine claims of ineffective assistance of counsel under the familiar
two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See
Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d).     Under Strickland, the defendant must prove that his trial counsel’s
representation was deficient, and that the deficient performance was so serious that
it deprived him of a fair trial. Strickland, 466 U.S. at 687. Counsel’s representation
is deficient if it falls below an objective standard of reasonableness. Id. at 688. But
a deficient performance will deprive the defendant of a fair trial only if it prejudices
the defense. Id. at 691-92. To demonstrate prejudice, the defendant must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been 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.

          Our review of trial counsel’s representation is highly deferential and presumes
that counsel’s actions fell within the wide range of reasonable professional
assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007);
Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.] 2018, no


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pet.) (op. on reh’g). If counsel’s reasons for his or her conduct do not appear in the
record and there exists at least the possibility that the conduct could have been
grounded in legitimate trial strategy, we defer to counsel’s decisions and deny relief
on an ineffective assistance claim on direct appeal. See Garza, 213 S.W.3d at 348.
The Court of Criminal Appeals has also stated that if counsel has not had an
opportunity to explain the challenged actions, we may not find deficient performance
unless the 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).
In the majority of cases, the record on direct appeal is simply undeveloped and
insufficient to permit a reviewing court to fairly evaluate the merits of an ineffective
assistance of counsel claim. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Robison,
461 S.W.3d at 203.

      With this framework in mind, we turn to each of appellant’s contentions.

B.    Failure to Object to Testimony

      In his first issue, appellant argues that his trial counsel was ineffective for not
objecting to Jagdis’s statements during the guilt-innocence phase of trial that D.W.
suffers from PTSD.      Appellant asserts that this testimony was victim impact
testimony inappropriate for guilt-innocence. See Love v. State, 199 S.W.3d 447,
456-57 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“Victim impact testimony
is irrelevant at the guilt-innocence phase of trial because it does not tend to make
more or less probable the existence of any fact of consequence with respect to guilt
or innocence.”). We disagree that counsel was ineffective for failing to object to this
testimony.

      To show ineffective assistance of counsel for the failure to object during trial,
an appellant must show that the trial judge would have committed error in overruling
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the objection the appellant says counsel should have asserted. Straight v. State, 515
S.W.3d 553, 565 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (citing Ex parte
White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004)). The type of victim impact
testimony at issue in today’s case generally is admissible during a child sex assault
case because such testimony tends “to make more or less probable a fact of
consequence at the guilt stage; that is, whether appellant committed the crimes at
all.” See Longoria v. State, 148 S.W.3d 657, 659-60 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d); see also Gonzalez v. State, 455 S.W.3d 198, 203-04 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d) (evidence of child’s PTSD admissible
during guilt-innocence phase when source of trauma was disputed).            Because
Jagdis’s testimony was admissible and the trial court would not have abused its
discretion in overruling the objection appellant contends counsel should have
asserted, we cannot say that trial counsel’s failure to object fell below an objective
standard of reasonableness. See Longoria, 148 S.W.3d at 659-60.

      Further, our record is silent regarding why appellant’s trial counsel failed to
object to Jagdis’s testimony. Appellant did not file a motion for new trial asserting
this complaint, nor did a hearing occur at which counsel was afforded an opportunity
to explain the reasoning behind the decision not to object. Our record is thus
insufficient to overcome the presumption that counsel’s actions were part of a
strategic plan. See Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (no
ineffective assistance on direct appeal when counsel failed to object to improper
victim impact testimony of an extraneous offense when record was silent as to
counsel’s motivations); see also Brown v. State, No. 14-15-00795-CR, 2017 WL
2258251, at *13 (Tex. App.—Houston [14th Dist.] May 23, 2017, no pet.) (mem.
op., not designated for publication) (where record was silent as to why appellant’s
counsel failed to object to victim impact testimony during guilt-innocence phase of


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trial, presumption that counsel’s actions were part of a strategic plan was not
overcome); Montez v. State, No. 14-05-00182-CR, 2006 WL 916437, at *6-7 (Tex.
App.—Houston [14th Dist.] Apr. 6, 2006, pet. ref’d) (mem. op., not designated for
publication) (same).

       In sum, appellant has not demonstrated that his counsel’s failure to object to
Jagdis’s testimony amounted to ineffective assistance of counsel. We overrule his
first issue.

C.     Failure to Cross-Examine Child Victim

       In his second issue, appellant urges that his trial counsel was ineffective
because he failed to cross-examine D.W. during the guilt-innocence phase of trial.
He contends that trial counsel should have attacked D.W.’s credibility, her delayed
outcry, and her changing story. However, we conclude that appellant has failed to
overcome the strong presumption that his counsel’s decision to refrain from cross-
examining the child victim in this case was strategic.

       “Cross-examination is inherently risky, and a decision not to cross-examine a
witness is often the result of wisdom acquired by experience in the combat of trial.”
Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). “Furthermore,
cross-examination is an art, not a science, and it cannot be adequately judged in
hindsight.” Id. Indeed, ineffective cross-examination may bolster, rather than
impeach, a witness’s credibility. See Jones v. State, 500 S.W.3d 106, 115 (Tex.
App.—Houston [1st Dist.] 2016, no pet.). Without a strong basis on which to cross-
examine, “‘it can be more effective to refrain from cross-examining a damaging
witness to minimize the impact of [her] testimony.’” Id. (quoting Dannhaus v. State,
928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).




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      In today’s case, trial counsel reasonably could have determined that cross-
examination of the child victim could have caused more damage than benefit. Id.;
see also Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.]
2004, pet. ref’d) (“Given an emotional and tragic case such as this, it is entirely
reasonable or foreseeable that a defense attorney would limit his cross-examination
out of fear of alienating a jury or coming across as too aggressive.”); Romero v.
State, No. 14-07-00657-CR, 2008 WL 5244890, at *4 (Tex. App.—Houston [14th
Dist.] Dec. 18, 2008, no pet.) (mem. op., not designated for publication) (“[T]here is
a possibility that appellant’s trial counsel thought she might alienate the jury if she
cross-examined the brother and the mother of a twelve-year-old victim of sexual
assault.”). Trial counsel reasonably could have foregone cross-examination of D.W.
based on concerns about alienating the jury or appearing too aggressive. Without a
more developed record explaining counsel’s strategy, appellant has not overcome
the strong presumption that trial counsel’s decisions regarding cross-examination
fall within the wide range of reasonable professional assistance. E.g., Jones, 500
S.W.3d at 115 (citing Ex parte McFarland, 163 S.W.3d at 755-57).

      On this record, appellant has not shown his trial counsel was ineffective for
failing to cross-examine D.W.

                                     Conclusion

      Having overruled appellant’s two issues, we affirm the trial court’ judgment.




                                        /s/       Kevin Jewell
                                                  Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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