                                   IN THE
                           TENTH COURT OF APPEALS

                               No. 10-09-00306-CR

ERIC DONALD ANDERSON,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2006-1453-C2


                           MEMORANDUM OPINION


      A jury convicted Eric Donald Anderson of two counts of aggravated sexual

assault and assessed his punishment at ninety-nine years’ imprisonment on each count.

Anderson contends in two issues that: (1) the court’s guilt-innocence charge

impermissibly commented on the evidence; and (2) he received ineffective assistance of

counsel. We will affirm.
                                    Guilt-Innocence Charge

       The State tried Anderson for four counts of aggravated sexual assault. 1 Because

the State offered evidence that Anderson sexually assaulted the complainant A.F. on

numerous occasions, the State was required to elect the particular alleged assaults on

which it would rely for convictions. The court instructed the jury regarding the State’s

elections for Counts 1 and 3 as follows:

              To prove the offenses [sic] alleged in the indictment in Count 1, the
       State has elected to proceed on the alleged event that occurred in the
       living room on the love seat, in which the defendant, Eric Donald
       Anderson, allegedly committed the offense, if any.

              To prove the offense alleged in the indictment in Count 3, the State
       has elected to proceed on the alleged event that occurred after the drive to
       Temple, in which the defendant, Eric Donald Anderson, allegedly
       committed the offense, if any.

       Because Anderson did not object to the court’s charge, he must establish that

these instructions are erroneous and that he suffered egregious harm from their

inclusion in the charge. Witt v. State, 237 S.W.3d 394, 398 (Tex. App.—Waco 2007, pet.

ref’d). “A charge improperly comments on the evidence if it ‘assumes the truth of a

controverted issue.’” Hanson v. State, 180 S.W.3d 726, 728 (Tex. App.—Waco 2005, no

pet.) (quoting Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986)).

       The instruction on Count 1 does assume that there was a love seat in the living

room, which was undisputed. However, the instruction does not assume that a sexual

assault actually occurred on that love seat. Thus, this instruction does not assume the

truth of a controverted issue. See Whaley, 717 S.W.2d at 32; Hanson, 180 S.W.3d at 728.

1
       The jury acquitted Anderson of the offenses alleged in Counts 2 and 4.


Anderson v. State                                                                     Page 2
       The instruction on Count 3 similarly assumes that someone drove to Temple

before Anderson allegedly assaulted A.F. However, it was undisputed that Anderson

drove A.F.’s mother to Temple to go to work on the occasion in question. Rather, the

parties disputed whether he smoked marijuana during the drive back from Temple and

whether he sexually assaulted A.F. afterward. The challenged instruction does not

assume that either of these actions occurred. Thus, the instruction does not assume the

truth of a controverted issue. Id.

       Accordingly, we overrule Anderson’s first issue.

                                     Ineffective Assistance

       Anderson complains in his second issue that he received ineffective assistance of

counsel because trial counsel failed to: (1) object to the admission of evidence regarding

extraneous misconduct; (2) request a hearing to determine the proper outcry witness;

(3) object to the testimony of two witnesses who gave their opinion about the

truthfulness of A.F.’s testimony; (4) object to the portions of the charge addressed in the

first issue; and (5) object to the court reporter’s failure to record several bench

conferences and in-chamber conferences.

       To prevail on an ineffective-assistance claim, an appellant must show by a

preponderance of the evidence that: (1) counsel’s performance was deficient and (2) the

deficient performance prejudiced the defense. Garza v. State, 213 S.W.3d 338, 347-48

(Tex. Crim. App. 2007). We begin with a “strong presumption” that counsel provided

reasonably professional assistance, and the defendant bears the burden of overcoming

this presumption. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). To


Anderson v. State                                                                    Page 3
do so, “the defendant must prove, by a preponderance of the evidence, that there is, in

fact, no plausible professional reason for a specific act or omission.” Bone v. State, 77

S.W.3d 828, 836 (Tex. Crim. App. 2002). Generally, the appellate record is insufficient to

satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Curry

v. State, 222 S.W.3d 745, 754 (Tex. App.—Waco 2007, pet. ref’d).

                                  Extraneous Misconduct

       Anderson argues that counsel was ineffective for failing to object to evidence that

he used marijuana, watched pornography, and was having an affair.

       A.F. testified that Anderson smoked marijuana on the drive home from Temple

and kept asking whether she was going to let him have sex with her when they arrived.

She testified that he sexually assaulted her later that night after putting her younger

sister to bed. A.F.’s mother testified that, in a phone conversation two days after she

confronted Anderson with the allegations (which he initially denied), he expressed

remorse for what had happened and suggested that he may have been “drunk or high”

on one of the occasions when he sexually assaulted A.F.

       A.F.’s testimony regarding Anderson’s marijuana usage was arguably admissible

as evidence of plan and preparation under Rule of Evidence 404(b). See TEX. R. EVID.

404(b); Hernandez v. State, 973 S.W.2d 787, 790 (Tex. App.—Austin 1998, pet. ref’d). His

statement to her mother that he may have been drunk or high when he sexually

assaulted A.F. was arguably admissible as same transaction contextual evidence. See

Gaconnet v. State, No. 04-98-00033-CR, 1999 Tex. App. LEXIS 7592, at *8-9 (Tex. App.—

San Antonio Oct. 13, 1999, pet. ref’d) (not designated for publication).


Anderson v. State                                                                    Page 4
       A.F. also testified that, one morning when she sat down to watch television,

Anderson started watching a pornographic movie so she got up and left the room. Her

mother testified that Anderson had two or three pornographic DVD’s and that the two

of them watched one together on one occasion.            This testimony was arguably

admissible as evidence of Anderson’s intent. See Sarabia v. State, 227 S.W.3d 320, 323-24

(Tex. App.—Fort Worth 2007, pet. ref’d).

       Finally, A.F.’s mother testified that Anderson admitted to her after the fact that

he had been having a relationship with another woman during their relationship. This

evidence supported counsel’s apparent strategy of trying to show that A.F. had a

motive to lie. See Hammer v. State, 296 S.W.3d 555, 56-68 (Tex. Crim. App. 2009).

       Plausible theories support the admission of the challenged testimony regarding

extraneous misconduct. The record is mostly silent regarding counsel’s strategy for not

objecting to this testimony.    Thus, Anderson has failed to overcome the “strong

presumption” that counsel provided reasonably professional assistance when he did

not object to this testimony.

                                     Outcry Witness

       Anderson contends that he received ineffective assistance of counsel because

counsel failed to request a hearing to determine the proper outcry witness.           Here,

Anderson complains that A.F.’s mother, a physician and a psychotherapist each

testified without objection regarding details of the offenses which A.F. told them.

       A.F.’s mother was the outcry witness. The testimony of the physician and of the

psychotherapist regarding A.F.’s statements to them was admissible as an exception to


Anderson v. State                                                                     Page 5
the hearsay rule for statements made for purposes of medical diagnosis or treatment.

See TEX. R. EVID. 803(4); Munoz v. State, 288 S.W.3d 55, 58-60 (Tex. App.—Houston [1st

Dist.] 2009, no pet.); Guzman v. State, 253 S.W.3d 306, 307-09 (Tex. App.—Waco 2008, no

pet.). Thus, Anderson has failed to overcome the “strong presumption” that counsel

provided reasonably professional assistance when he did not object to this testimony.

                              Opinions About A.F.’s Veracity

       Anderson argues that counsel was ineffective for failing to object to the

testimony of two witnesses who gave their opinion about the truthfulness of A.F.’s

testimony.

       Jeredith Jones testified about the steps she took as a CPS investigator in response

to the referral received concerning A.F.’s allegations. When asked whether she had any

additional contact with law enforcement after interviewing A.F. and her mother, she

answered, “I spoke with the detective who was assigned to the case to let her know that

I felt that the allegations were valid and needed further follow-up.”

       Anderson contends that this statement is inadmissible because it constitutes an

imadmissible opinion regarding his guilt and an inadmissible opinion regarding A.F.’s

veracity. He cites Boyde v. State, 513 S.W.2d 588, 589-90 (Tex. Crim. App. 1974), and

Graves v. State, 994 S.W.2d 238, 247 (Tex. App.—Corpus Christi 1999, pet. ref’d,

untimely filed), to support the first contention, and he cites Yount v. State, 872 S.W.2d

706, 711 (Tex. Crim. App. 1993), to support the second contention.

       In Boyde, a police officer was asked whether, at the time of arrest, he was “totally

satisfied” that the defendant was guilty and whether he knew of any evidence which


Anderson v. State                                                                    Page 6
would tend to exonerate the defendant or show that he was not guilty. The Court of

Criminal Appeals held that this was improper. See Boyde, 513 S.W.2d at 590.

       In Graves, a deputy testified that she investigated sex crimes and does not file

charges when the evidence does not implicate a suspect. 994 S.W.2d at 247. She further

testified that, based on her investigation of Graves, she identified four sexual assault

victims. Id. The court of appeals rejected Graves’s contention that this was tantamount

to giving an opinion as to his guilt.

       Instead, the inference that may be drawn from the complained of
       testimony is that there was sufficient evidence to bring formal charges
       against appellant. Merely because an officer testifies there is evidence for
       charges to be brought against a defendant, does not suggest that the
       testimony goes to the defendant’s guilt.

Id.

       Unlike the officer in Boyde, Johnson was not asked to give an opinion regarding

Anderson’s guilt. Rather, her testimony is more similar to that in Graves which was

found to be permissible.

       In Yount, a physician was asked in how many of the hundreds of examinations

she had performed had she found the allegations to be invalid. She replied, “When you

mean invalid, that the child was not telling the truth?” The prosecutor responded,

“Right,” and over objection she answered, “I have seen very few cases where the child

was actually not telling the truth.” Yount, 872 S.W.2d at 707-08.

       The Fort Worth Court has explained that Yount addresses “the admissibility of

direct testimony as to the truthfulness of the child complainant.” See Salinas v. State, 166

S.W.3d 368, 370 (Tex. App.—Fort Worth 2005, pet. ref’d). Unlike the physician in Yount,


Anderson v. State                                                                     Page 7
Johnson was not asked whether she thought A.F. was telling the truth. Her testimony

that she felt that the allegations were valid, particularly when viewed in context

(namely, her explanation of the steps in the investigation), is not “direct testimony”

regarding A.F.’s truthfulness.

       Dr. Ann Sims testified that her findings from a physical examination of A.F. were

not inconsistent with the sexual abuse history A.F. told her. Anderson argues that, by

doing so, she gave her personal opinion that he sexually assaulted A.F. We disagree.

       Unlike the officer in Boyde, Sims was not asked whether she believed Anderson

was guilty.     Rather, she was asked whether her findings were consistent with the

allegations. Such testimony is not objectionable. See Reyes v. State, 274 S.W.3d 724, 730

(Tex. App.—San Antonio 2008, pet. ref’d).

       Accordingly, Anderson has failed to overcome the “strong presumption” that

counsel provided reasonably professional assistance when he did not object to

Johnson’s and Sims’s testimony.

                                  Comments on Evidence

       Anderson complains that he received ineffective assistance of counsel because

counsel failed to object to the instructions we discussed in addressing his first issue.

However, we determined that these instructions were not objectionable.             Thus,

Anderson has failed to overcome the “strong presumption” that counsel provided

reasonably professional assistance when he did not object to the challenged

instructions.




Anderson v. State                                                                  Page 8
                                 Unrecorded Conferences

       Finally, Anderson argues that counsel was ineffective for failing to object to the

court reporter’s failure to record various conferences conducted at the bench or in

chambers. He observes that “[t]hese unrecorded conferences created an unknown”

which “may have assisted Appellant on appeal.”

       Anderson’s own argument demonstrates that he cannot prevail on this

contention in this direct appeal. He must establish that he was prejudiced by what

occurred during these unrecorded conferences. See Garza, 213 S.W.3d at 347-48. Yet he

concedes that what occurred there is “unknown” and only “may have assisted” him on

appeal. An ineffective assistance claim will not be sustained on the basis of mere

speculation. See Bone, 77 S.W.3d at 835; Howard v. State, 239 S.W.3d 359, 367 (Tex.

App.—San Antonio 2007, pet. ref’d); Curry, 222 S.W.3d at 754.

       Accordingly, we overrule Anderson’s second issue.

       Having overruled the issues presented, we affirm the judgment.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed October 20, 2010
Do not publish
[CRPM]




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