      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00438-CR



                                     Larry Beltran, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
       NO. D-1-DC-08-500396, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Larry Beltran of aggravated sexual assault of A.B., his

minor daughter.1 See Tex. Penal Code Ann. § 22.021 (West Supp. 2012). Beltran opted to have the

trial court assess punishment and pled true to three alleged prior convictions, and the trial court

sentenced him to life imprisonment. Beltran filed a motion for new trial, which was overruled as

a matter of law without a hearing. See Tex. R. App. P. 21.8(a), (c). On appeal, Beltran contends that

his trial counsel was ineffective and that the trial court erred by allowing one of the State’s expert’s

testimony.2 We affirm the trial court’s judgment of conviction.

       1
         Beltran was charged with one count of aggravated sexual assault of a child by penetration,
one count of aggravated sexual assault by causing his sexual organ to contact the victim’s
sexual organ, and one count of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11
(West 2011), § 22.021 (West Supp. 2012). The charge instructed the jury that it could only convict
Beltran of one of the three charges, and the jury found him guilty of count I, aggravated sexual
assault by penetration.
       2
         Beltran’s motion for new trial asserted only that the testimony by one of the State’s expert
witnesses was improper; it did not allege ineffective assistance of counsel.
                                Ineffective Assistance of Counsel

               On appeal, Beltran contends that he received ineffective assistance of counsel in

three respects: trial counsel (1) did not object to the State’s introduction of evidence of Beltran’s

prior crimes, wrongs, or acts; (2) actively elicited testimony that Beltran was a registered

sex offender, enabling the prosecutor to question the witness about Beltran’s criminal history; and

(3) called Beltran to testify when any potential advantage was substantially outweighed by the

potential disadvantages of exposing Beltran to cross-examination regarding his prior convictions.


                                        Standard of Review

               To show ineffective assistance of counsel, a defendant must show that counsel’s

performance fell below an objective standard of reasonableness and that the deficient performance

prejudiced the defendant’s case. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999);

Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.—Austin 2000, no pet.). To demonstrate prejudice,

a defendant must show that there is a reasonable probability that but for counsel’s errors, the result

of the proceeding would have been different. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994). The defendant must (1) overcome a strong presumption that counsel’s performance fell

within the range of reasonable professional assistance and (2) bring forth a record showing that

counsel’s performance was not based on sound trial strategy. Thompson, 9 S.W.3d at 813; Blevins,

18 S.W.3d at 271. Unless the record demonstrates that counsel’s conduct was not the product of a

strategic or tactical decision, we should presume that his performance was constitutionally adequate

unless the challenged conduct was so outrageous that no competent attorney would have engaged

in such conduct. State v. Morales, 253 S.W.3d 686, 696-97 (Tex. Crim. App. 2008). The record on



                                                  2
direct appeal is usually insufficient to show that counsel’s representation was so deficient and so

lacking in tactical or strategic decision-making to overcome the presumption that counsel’s conduct

was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).


                                       Factual Background

               A.B. is the child of Beltran and T.W., Beltran’s ex-wife. A.B. was born in 2000 and

was nine years old at the time of trial. In 2006, Beltran’s father pled guilty to the aggravated

sexual assault of A.B. April Abell, T.W.’s adoptive mother and A.B.’s grandmother, testified that

T.W. suffered from bipolar disorder and that A.B. had come to live with Abell and her husband in

January 2008 because T.W. was unable to care for her properly. Abell testified that soon after A.B.

started living with them, she and A.B.’s grandfather noticed she was defecating in her underwear,

despite being eight years old, and was having severe nightmares that “always revolved around her

father beating her with a belt.” Three or four weeks after A.B. came to live with Abell in 2008, she

made an outcry that Beltran had sexually abused her about six months earlier.

               A.B. testified that Beltran had touched her “private” with “[h]is private” once and

that it hurt. A.B. did not tell her mother because T.W. “would get scared”; she decided to tell her

grandparents about the abuse because she “knew they wouldn’t get really, really scared.” She also

said Beltran treated her “bad” and spanked her with a belt more than once.

               T.W. testified, and when the State asked her about A.B.’s 2006 outcry against

Beltran’s father, T.W. said she initially thought A.B. meant that Beltran had abused her, not his

father. On cross-examination, trial counsel asked T.W. why she first thought Beltran, not his father,

had abused A.B. in 2006. A short discussion was held at the bench, and Beltran’s trial counsel said,



                                                 3
“[O]ur strategy at this point we are going to testify—we are going to go in to all this.”3 Trial counsel

said he thought the State’s attorney was trying to instruct T.W. not to talk about Beltran’s past

record, but “that’s all off,” explaining to T.W. that she could “answer this question fully without any

restrictions whatsoever,” and asking whether her assumption was due to something A.B. had said

or “based on [Beltran’s] record.” T.W. responded that it was based on Beltran’s criminal record as

a sex offender. She also said Beltran had initially lied to her about his prior offense, telling her the

victim was seventeen, not twelve, as she later discovered. On redirect, the State asked T.W. about

Beltran’s prior convictions, and she said he had gone “to jail quite often” for failure to register as a

sex offender and for driving while intoxicated.

                Beltran testified on his own behalf, and during his direct testimony and the State’s

cross-examination, he was asked about his prior convictions for indecency with a child, failure to

register as a sex offender, and driving while intoxicated. Beltran admitted that he was originally

charged with aggravated sexual assault of a child in the earlier indecency case and that he “pled to

that offense and . . . actually pled guilty to indecency with a child by contact.” He also testified that

T.W. used to threaten to have him arrested based on his prior convictions, stating that when he called

the police about her assaultive behavior, she threatened to tell the police that he was a registered

sex offender. Beltran admitted to spanking A.B., including with a belt, and to choking T.W. during

a fight, and said he knew that A.B. had “reported that ‘daddy choked mommy and tried to send

mommy to the angels.’” He did not know why A.B. was falsely accusing him of sexual abuse and

said the only reason he could think of was one occasion when he got angry after she soiled herself.


        3
        Beltran’s attorney and the prosecutor had agreed on a pretrial motion in limine that they
would not “go into the defendant’s priors without approaching.”

                                                   4
Beltran called his sister to testify, and she said she had heard T.W. threaten to call the police and

have Beltran arrested because of his past record as sex offender. She also said T.W. had threatened

to have her arrested for abusing T.W.’s sons.


                                              Discussion

                Beltran first argues that he received ineffective assistance because counsel did not

object to testimony that Beltran yelled at and hit his children, spanked A.B. with a belt, yelled at A.B.

for a long time, choked T.W. and tried to “send [her] to the angels,” and frequently appeared in

A.B.’s nightmares beating her with a belt. Although Beltran argues that counsel’s failure to object

was not part of a sound trial strategy, he admits that counsel’s overall trial strategy was to argue that

T.W. had persuaded A.B. to falsely accuse him of sexual assault. However, he contends that this

strategy would have been more effective without evidence regarding his extraneous bad acts.

                First, Beltran has not shown that counsel’s strategy was unsound or that it was

unreasonable to believe that the jury might have viewed evidence about Beltran’s violence towards

his family members as giving T.W. and A.B. motive to make false accusations. Nor is it clear that

counsel was only using that one strategy. Finally, counsel could reasonably have believed that at

least some of the evidence was admissible under the code of criminal procedure, which allows

evidence of other crimes or bad acts committed by the defendant against the alleged child victim to

show (1) the state of mind of the defendant and the child and (2) the relationship between the

defendant and child. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2012). Beltran

has not shown that counsel’s performance related to evidence of other bad acts fell below an

objective standard of reasonableness. See Bone, 77 S.W.3d at 833.



                                                   5
               Beltran next argues that counsel was ineffective because he elicited testimony

from T.W. about Beltran’s prior convictions and that opening the door to testimony about his prior

convictions was not a part of a sound trial strategy. He argues that counsel could have established

that T.W. had previously threatened to have him arrested without eliciting testimony about his

criminal history. He also contends that counsel was ineffective in calling Beltran to testify, arguing

that it did not further his case, there was no significant advantage to be gained, and any potential

advantage was substantially outweighed by the disadvantage of exposing him to cross-examination

regarding his prior convictions. He argues that the only potential value of his testimony was to allow

him to deny A.B.’s allegations, which was accomplished when he entered his not-guilty plea.

               Counsel specifically told the court that his asking T.W. about Beltran’s prior

convictions was part of his trial strategy. Although counsel did not specify exactly what his strategy

was, it is reasonable to conclude that counsel might have wanted to bring out this information to

show that Beltran was being honest and was not trying to hide his criminal history, rather than

risking vague answers that could lead the jury to believe Beltran was concealing something. Further,

in counsel’s closing argument, he argued that A.B. was persuaded by her mother to make false

accusations against Beltran and that T.W. had “used [Beltran] being a sex offender as a way to keep

control over [him] and hold that over his head.”

               Having Beltran testify could reasonably have been part of counsel’s strategy to show

the jury that Beltran was not attempting to hide his past wrongdoings and to allow Beltran to explain

the circumstances of his prior convictions. It also meshed with counsel’s defensive theory that T.W.

persuaded A.B. to make false accusations, pointing to T.W.’s past behavior of holding Beltran’s sex-

offender status against him when angered. The fact that an alternate trial strategy could have been

                                                   6
used does not establish that counsel was ineffective. See Damian v. State, 881 S.W.2d 102, 110

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Based on this record, Beltran has not shown that

counsel’s conduct was not the product of a sound strategic or tactical decision or was so outrageous

that no competent attorney would have engaged in such conduct. See Morales, 253 S.W.3d at 696-

97. Because Beltran has not shown that counsel’s performance fell below an objective standard of

reasonableness, see Bone, 77 S.W.3d at 833, we overrule Beltran’s first issue.


                            Admission of Expert Witness Testimony

               In his second issue, Beltran contends that the trial court committed reversible error

in overruling his objections and allowing Dr. William Carter to testify as an expert witness.


                                        Standard of Review

               We review a trial court’s admission of expert testimony under an abuse of

discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Coble v. State,

330 S.W.3d 253, 272 (Tex. Crim. App. 2010). “Such rulings will rarely be disturbed by an appellate

court.” Jessop v. State, 368 S.W.3d 653, 689 (Tex. App.—Austin 2012, no pet.). A court abuses

its discretion if it acts without reference to any guiding rules and principles. Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990). The trial court is given a “limited right to be wrong”

as long as it does not act in an arbitrary or capricious manner. Id. We will not reverse unless we

determine that the trial court’s ruling was so wrong as to fall outside the zone within which

reasonable people might disagree. Tillman, 354 S.W.3d at 435; Jessop, 368 S.W.3d at 689. Expert

testimony is admissible if the party offering the testimony proves that it is relevant and based on a

“reliable scientific foundation.” Tillman, 354 S.W.3d at 435. We ask whether the evidence will

                                                 7
assist the jury and is “‘sufficiently tied to the facts of the case,’” meaning the expert must attempt

to “‘tie pertinent facts of the case to the scientific principles which are the subject of his testimony.’”

Id. at 438 (quoting Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)).

                If the evidence was relevant and based on a proper scientific foundation, we next

weigh its probative value against its prejudicial effect. Jessop, 368 S.W.3d at 694. The rules of

evidence favor “the admission of relevant evidence and [carry] a presumption that relevant evidence

will be more probative than prejudicial,” and we recognize that “[a]ll testimony and physical

evidence are likely to be prejudicial to one party or the other.” Id. Instead, we will only exclude

evidence that carries the danger of unfair prejudice, meaning a tendency to lead the jury to make a

decision on an improper basis. Id. “[O]nly when there exists a clear disparity between the degree

of prejudice produced by the offered evidence and its probative value” will rule 403 require

exclusion of relevant evidence. Id.; see Tex. R. Evid. 403.


                                          Factual Background

                After the defense rested its case-in-chief, the State called Dr. Carter as a rebuttal

witness. Carter specializes in the treatment and evaluation of sexual abuse victims and testified

about general patterns of sexual offenders and their victimization of children; Carter had no specific

knowledge of the case. Before Carter began to testify before the jury, Beltran’s counsel took him

on voir dire and objected to several issues that the prosecutor said she intended to raise during

Carter’s testimony, including testimony about whether sex offenders tend to minimize and deny

later offenses and to his opinion that a person would be more likely to sexually assault a child if

his father had committed a similar offense. Counsel argued that testimony about the truthfulness



                                                    8
of sex offenders was more prejudicial than probative and would go “beyond what is legally

permissible” if it referenced “research [that] this particular person or this particular class of persons

is less credible than another class of persons.” Beltran also specifically objected to testimony that

someone with a sex offender for a father was statistically more likely to be a sex offender himself

or that such offenses run in families, saying it was impermissible to allow testimony that invited the

jury to think that “his daddy did it, so he did it, too.” The trial court overruled Beltran’s objections

and allowed Carter to testify.

                Carter was asked by the prosecutor:


        Let me give you a hypothetical . . . [a] grandfather perpetrates on a child,
        subsequently confesses to that and is convicted, as well as a son has perpetrated on
        another child who was approximately 12 years old. Does that tell you anything abut
        what kind of an environment a child would experience—or what a child would
        experience if they were brought into such an environment?


Beltran’s attorney objected that any probative value was outweighed by the danger of unfair

prejudice, see Tex. R. Evid. 403, and the trial court overruled the objection. Carter answered, “What

you are speaking of is suggestive of a . . . family system where sex and sexuality is inappropriately

expressed. That would suggest and leave open the possibility that a child born into that world

is more vulnerable than not.” He also said such an environment could “have an impact on her

willingness to tell” if she was abused. Carter was then asked over Beltran’s relevance objection,

see id. R. 402, whether there were any studies showing a correlation of sexual abuse in a family in

which a father and son are both known to have committed abuse. Carter replied:


        What I would say there is that if there is sexual deviance within various male
        members, . . . the more vulnerable the child is. I can’t say that because one man

                                                   9
       sexually abuses, all other men in the family system are going to sexually offend as
       well. But when you see patterns and characteristics like that within family systems,
       it suggests that sexuality is inappropriately expressed within that system and that a
       child pulled into that system is more vulnerable than not.


Carter was reminded that both Beltran and his father were convicted sex offenders and was asked

whether there was a correlation. He answered, “Yes, I think you can say there is a connection here.”

Beltran objected, arguing, “I believe the last question went way, way over the line of what is

permissible for any expert witness to testify. That is flat out saying he did it because his daddy did

it, that’s ground for mistrial.” The prosecutor noted that Beltran’s prior conviction was already “out

there,” and the trial court said, “Actually the only reason the conviction came in was to impeach

him.”4 The State responded, “He pretty much let me have open reign [sic],” and the trial court said,

“I agree. It is overruled.”


                                             Discussion

               Beltran argues that admission of Carter’s testimony was erroneous because evidence

of a person’s character is not admissible for the purpose of proving action in conformity with that

character trait on a particular occasion, nor is evidence of crimes, wrongs, or other acts admissible

to prove that a person acted in conformity with such evidence. Id. R. 404(a), (b). Beltran does not

attack the scientific reliability or relevance of Carter’s testimony and instead argues that Carter’s

testimony violated the Texas Constitution and the code of criminal procedure by implying that


       4
          Beltran points to this statement by the trial court to support his assertion that the court
admitted evidence of his prior convictions “for the limited purpose of allowing the State to
attack [Beltran’s] credibility as a witness.” However, the record does not support the trial court’s
statement. Beltran introduced evidence of his prior convictions, as discussed earlier, and that
evidence was not admitted over Beltran’s objection or with limiting instructions or cautions.

                                                 10
Beltran sexually assaulted A.B. because both he and his father were convicted sex offenders. Thus,

we need only consider whether Carter’s testimony might have led the jury to decide Beltran’s guilt

on an improper basis and whether there was “a clear disparity between the degree of prejudice

produced by the offered evidence and its probative value.” Jessop, 368 S.W.3d at 694.

                The State called Carter to testify generally to the patterns of sexual offenders and how

these offenders typically victimize children. Carter stated that he never interviewed A.B., Beltran,

or any of the other witnesses and that his purpose was to help the jury to understand the nature and

dynamics of sexual abuse. Carter answered hypothetical questions based on this case but did not

make any specific statements about Beltran’s character or his acts, instead explaining the general

patterns and pathology often found in sex offenders and their families. In his brief, Beltran does not

explain how Carter’s testimony about statistical correlations in families with sex offenders or the

vulnerability of a child born into such a family carried with it “unfair prejudice” or how there was

a “clear disparity” between its probative value and its degree of prejudice. See id. Beltran simply

sets out the standard to be applied when reviewing the admission of such evidence and concludes

that “it cannot be said with fair assurance that the aforseaid testimony . . . did not influence the jury,

or had but a slight effect.” The fact that Carter’s testimony was unfavorable to Beltran does not

mean it carried a risk of unfair prejudice. See id.; see also Peters v. State, 31 S.W.3d 704, 720-21

(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (prejudicial effect of testimony about recidivism

rates for incest offenders did not substantially outweigh probative value, thus trial court erred in

excluding proffered testimony); Kos v. State, 15 S.W.3d 633, 641-42 (Tex. App.—Dallas 2000,

pet. ref’d) (prejudicial potential of testimony about how “‘seduction type’ preferential offender”

comes to control victim did not outweigh probative value).

                                                   11
               The trial court could have concluded that this kind of information, even when tied

to facts drawn from the case, would be helpful to the jury in its deliberations of the evidence. See

Tex. R. Evid. 702. The record reflects that the trial court attempted to hew to the guiding principles

set out in the rules of evidence, and we conclude that the court did not abuse its discretion in

determining that the testimony was more probative than prejudicial and therefore within the bounds

of rule 404. See id. R. 404. Therefore, we overrule Beltran’s second issue.


                                          CONCLUSION

               We have overruled Beltran’s issues on appeal. We therefore affirm the trial court’s

judgment of conviction.




                                               _____________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: December 21, 2012

Do Not Publish




                                                 12
