                         NUMBER 13-12-00185-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ERIC WAYNE STANFORD,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Perkes
                 Memorandum Opinion by Justice Perkes
      Appellant Eric Wayne Stanford appeals his conviction of two counts of aggravated

sexual assault, first-degree felonies, see TEX. PENAL CODE ANN. § 22.021(a)(1) (West

Supp. 2011), enhanced by a prior felony conviction of indecency with a child by contact,

see id. §§ 12.42(c) (2)(A)(i) (West Supp. 2011); 21.11(a)(1) (West 2011). A jury found

appellant guilty, and the trial court assessed punishment at two concurrent life sentences
to be served in the Texas Department of Criminal Justice, Institutional Division. By one

issue, appellant argues he received ineffective assistance of counsel. We affirm.

                                         I. BACKGROUND1

        The State indicted appellant for aggravated sexual assault resulting from his

alleged conduct involving a nine-year-old girl. She accused appellant of penetrating her

vagina with his fingers and licking her vagina on her ninth birthday. The child disclosed

appellant’s conduct to her father and a sexual assault nurse. The child, her father, and

the sexual assault nurse all testified at trial. In addition, appellant’s brother testified that

appellant admitted he “kissed” the child “below” or on the “crotch.”

        Dianne Oliver, a crime lab forensic scientist with the Texas Department of Public

Safety, analyzed swabs from the sexual assault nurse’s examination and the clothes the

child was wearing on the day of the alleged assault. Oliver compared DNA specimens

from the swabs to DNA samples that were taken from the child and appellant. Oliver

concluded appellant could not be excluded as a contributor to the DNA specimen she

found on the inside of the child’s panties or to another DNA specimen that was taken from

a swabbing of the child’s naval area.              Oliver explained that forensic scientists use

terminology “included or excluded as a contributor” in their conclusions, and testified

about statistical “probability to be a contributor . . . .”

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        By his sole issue, appellant contends that his trial counsel was constitutionally

ineffective for failing to provide essential clarifying information to the jury regarding

        1
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
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statistical underpinnings of DNA analysis, either through a defense expert, vigorous

cross-examination of Oliver, or objecting to Oliver’s testimony.

A.     Standard of Review

       To prevail on an ineffective assistance of counsel claim, appellant must show that

(1) counsel’s representation fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);

Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Our

review of counsel’s representation is highly deferential; we will find ineffective assistance

only if appellant rebuts the strong presumption that his counsel’s conduct fell within the

wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Lopez,

343 S.W.3d at 142; Jaynes, 216 S.W.3d at 851. The record must contain evidence of

counsel’s reasoning, or lack thereof, to rebut the presumption.        Moreno v. State, 1

S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref’d). We review the totality of

representation rather than isolated instances in determining whether trial counsel was

ineffective. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006);

Lopez, 343 S.W.3d at 143.

B.     Discussion

       The failure to call a witness does not amount to ineffective assistance of counsel

unless the record shows the witness was available and would have provided testimony

beneficial to the defendant. See Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim.

App. 1986) (en banc); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (en banc).


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Appellant has not identified any available witness and does not explain what testimony

such a witness would have provided. Moreover, appellant fails to rebut our presumption

that his trial counsel’s decision not to hire a DNA expert constituted sound trial strategy.

See Lopez, 343 S.W.3d at 143; Moreno, 1 S.W.3d at 865. Similarly, “[t]he suggestion

that cross-examination should have been conducted in a different manner does not rebut

the presumption . . . .” Resendiz v. State, 112 S.W.3d 541, 548 (Tex. Crim. App. 2003)

(en banc).   Lastly, although appellant asserts trial counsel should have objected to

Oliver’s testimony, appellant neither provides the grounds for any objection nor directs us

to any inadmissible testimony. See McFarland v. State, 845 S.W.2d 824, 846 (Tex.

Crim. App. 1992) (en banc), overruled on other grounds, Bingham v. State, 915 S.W.2d 9,

10 (Tex. Crim. App. 1994) (en banc) (“[T]he failure of trial counsel to object to admissible

evidence does not constitute ineffective assistance of counsel . . . .”).

       Appellant fails to show that any of the foregoing alleged deficiencies manifested

ineffective assistance of counsel. Even assuming the isolated examples were attorney

error, they do not show that the totality of trial counsel’s representation was ineffective.

See Robertson, 187 S.W.3d at 483; Lopez, 343 S.W.3d at 143. Appellant does not

provide sufficient record evidence to overcome our presumption that, when viewed in its

entirety, trial counsel’s conduct fell within the wide range of reasonable professional

assistance. See Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142; Jaynes, 216

S.W.3d at 851. In addition, appellant does not show that but for counsel’s deficient

performance the result of the proceeding would have been different. See Strickland, 466

U.S. at 694; Lopez, 343 S.W.3d at 142; Moreno, 1 S.W.3d at 864.


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       We overrule appellant’s issue.

                                   III. CONCLUSION

       We affirm the trial court’s judgment.



                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of September, 2013.




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