        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00012-CR



                                     Ricky Joe Byler, Appellant

                                                   v.

                                    The State of Texas, Appellee



       FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
            NO. 99-2939, HONORABLE TOM BLACKWELL, JUDGE PRESIDING



                 A jury convicted appellant Ricky Joe Byler of sexual assault of a child, two counts of

indecency with a child by contact, and indecency with a child by exposure, and sentenced him to a

term of imprisonment of fifty years. By two points of error, appellant appeals his conviction, arguing

that (1) the trial court erred in admitting hearsay evidence and (2) he received ineffective assistance

of counsel. We affirm the judgment.


                                           BACKGROUND

                 Appellant’s niece (“N.”),1 at age eleven, told a Child Protective Services (“CPS”)

investigator that appellant touched her “in the wrong places.” The CPS investigator reported this to

Detective Nancy Zimmerman with the sheriff’s department. The next day, N. gave a videotaped

interview to Carly Moore, a forensic interviewer at the Child Advocacy Center.




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       We refer to appellant’s niece with the initial “N.”
                At trial, N. testified that appellant sexually assaulted her several times when she visited

him at his residence. N. specifically testified about two sexual assaults, one in appellant’s bedroom

when she was eight and the other under a bridge near the house when she was eleven. A key part of

her testimony was that appellant used a distinctive condom during the assault under the bridge. Also

testifying at trial were the CPS investigator, Zimmerman, and Moore.


                                            DISCUSSION

                In his first point of error, appellant contends that the trial court erred in admitting

hearsay evidence over the objection of his attorney. He argues that Zimmerman’s testimony

concerning a statement made by N. does not fall within any hearsay exception and is therefore

inadmissible. Zimmerman testified that she went to the bridge near appellant’s house because N.,

during the videotaped interview, said “that a condom had been used during the sexual assault and she

said that her uncle had discarded the condom under the bridge.” Appellant’s counsel objected to this

testimony, asserting that it was hearsay. The trial court overruled the objection. Zimmerman then

stated, “That’s why I went, I went to get pictures of the location and to see if I could find the

condom.”

                Hearsay is a “statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d).

The State offered Zimmerman’s testimony to explain part of her investigation. Because the statement

was not offered to prove the truth of the matter asserted, that a condom had been used and discarded,

the testimony is not hearsay, and the trial court did not err in admitting it. See Dinkins v. State, 894

S.W.2d 330, 347-48 (Tex. Crim. App. 1995) (statements in police officer’s testimony, when not

                                                    2
offered for the truth but to explain how a defendant became a suspect in an investigation, are not

hearsay). We overrule appellant’s first point of error.

               In his second point of error, appellant argues that his counsel rendered ineffective

assistance. Appellant argues that his counsel was ineffective because of his: (1) failure to object to

Moore as an improper outcry witness; (2) failure to object to Moore’s testimony on the grounds that

it was either a prior consistent statement or “backdoor” hearsay through inferences to out-of-court

statements; (3) failure to object to the State’s characterization of N. as a “victim,” either through a

motion in limine or an objection; and (4) use of a peremptory strike instead of a challenge for cause.

We review the effectiveness of counsel under a two-pronged test. Appellant must show that his

lawyer’s performance fell below an objective standard of reasonableness and there is a “reasonable

probability” that the result of the proceeding would have been different but for counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 688-89 (1984); Hernandez v. State, 726

S.W.2d 53, 57 (Tex. Crim. App. 1986). Our review is highly deferential. Strickland, 466 U.S. at

689.

               When a reviewing court examines whether trial counsel was ineffective, there is a

strong presumption that trial counsel’s actions were part of his trial strategy. Id.; Jackson v. State,

877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to prove a claim of

ineffective assistance of counsel by a preponderance of the evidence. See McFarland v. State, 928

S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d

249, 263 (Tex. Crim. App. 1998). He must overcome a strong presumption that his counsel’s (i)

conduct fell within the wide range of reasonably professional assistance, id.; Tong v. State, 25 S.W.3d



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707, 712 (Tex. Crim. App. 2000), and (ii) actions might be considered sound trial strategy, Jackson,

877 S.W.2d at 771.        Trial strategy may constitute ineffective assistance only if the record

demonstrates that trial counsel acted without any plausible basis. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). Appellant’s burden is made more difficult when, as in this case, the

appellant does not file a motion for new trial asserting ineffective assistance, which would have

allowed trial counsel to testify at a hearing about his trial strategy. See id. at 813-14; Jackson, 877

S.W.2d at 771.

                 Appellant first contends that, by failing to obtain a ruling on the motion in limine

prohibiting more than one outcry witness and by not objecting at trial to Moore’s testimony on the

same ground, his counsel was ineffective. The outcry statute allows hearsay testimony by the first

person over eighteen years of age, other than the defendant, to whom a child twelve years of age or

younger reports specific details about alleged sexual abuse. Tex. Code Crim. Proc. Ann. art. 38.072

(West Supp. 2002). The statute allows only one outcry statement per discrete instance of sexual

abuse. Id.; Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d). The

State listed both the CPS investigator and Moore as potential outcry witnesses and submitted a

summary of testimony for each. See Tex. Code Crim. Proc. Ann. art. 38.072. Appellant’s trial

counsel filed a motion in limine, which included a prohibition on a second outcry statement; he did

not obtain a ruling on this, or any other, issue in the motion. Even if the court had granted appellant’s

motion in limine, counsel still would have had to object at the time of the testimony to preserve error.

Willis v. State, 785 S.W.2d 378, 384 (Tex. Crim. App. 1989) (motion in limine does not preserve




                                                   4
error). Thus, a motion in limine would have been effective only if the court, upon proper objection,

would have excluded Moore’s testimony.

                Moore testified at trial without objection. However, even had appellant objected,

Moore’s testimony would have been otherwise admissible. During Moore’s testimony, appellant’s

trial counsel cautioned her not to give details about what N. said in the videotaped interview. She

complied, only stating that “she talked in detail” in the interview about what happened to her. Moore

did not relay any details about the interview. Therefore, no objection to her as a second outcry

witness was necessary. Because Moore’s testimony was not objectionable under article 38.072 and

was otherwise admissible, appellant’s contentions that trial counsel was ineffective in failing to obtain

a ruling on the motion in limine and to object to Moore as a second outcry witness are without merit.

                Appellant further argues that his trial counsel should have objected to Moore’s

testimony as either an improper prior consistent statement or “backdoor” hearsay. For example,

Moore responded to questions such as, “Did she describe colors of different items?”; “Did she

describe sounds that she heard?”; and “Did she describe the places where certain incidents occurred?”

Appellant argues that Moore’s testimony contained strong inferences about statements in the

videotaped interview and was thus “backdoor” hearsay. See Head v. State, 4 S.W.3d 258, 261-62

(Tex. Crim. App. 1999); Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). The test

for backdoor hearsay is whether the “‘State’s sole intent in pursuing [a] line of questioning was to

convey to the jury’ the contents of out-of-court statements.” Head, 4 S.W.3d at 262 (quoting

Schaffer, 777 S.W.2d at 114) (addressing testimony trying to bring in statements of informants who

did not testify) (emphasis in original). Here, Moore did not give any specifics about N.’s videotaped



                                                   5
testimony; she simply responded “yes” to the State’s questions about whether N. described clothing,

colors, sounds, and feelings in her videotaped interview. We are unable to conclude from the record

that the State’s sole intent was to convey contents of out-of-court statements. Accordingly, Moore’s

testimony was not hearsay and was therefore admissible, and counsel’s failure to object to her

testimony did not fall below an objective standard of reasonableness. See Strickland, 466 U.S. at

693-94.

               Relying on Ex parte Menchaca, appellant next alleges that his counsel was ineffective

by allowing the State to use the word “victim” to describe N. See 854 S.W.2d 128 (Tex. Crim. App.

1993). Appellant’s reliance on that case is misplaced. In Menchaca, the court found that counsel

was ineffective by allowing the introduction of defendant’s prior conviction. Id. at 133. Here,

appellant’s complaint concerns the State’s use of the word “victim.” Even assuming that appellant’s

counsel should have objected, courts have found that reference to language stronger than “victim”

does not result in reversible error. See, e.g., Lopez v. State, 286 S.W.2d 424, 425 (Tex. Crim. App.

1956) (“slaughter”); Espalin v. State, 237 S.W. 274, 279 (Tex. Crim. App. 1921) (“this killer”);

Jones v. State, 900 S.W.2d 392, 397 (Tex. App.—San Antonio 1995, pet. ref’d) (“sex slave”); White

v. State, 699 S.W.2d 607, 615 (Tex. App.—Dallas 1985, pet. ref’d) (“butcher”). Thus, we cannot

say that appellant’s counsel’s failure to object to use of the term “victim” was deficient.

               Appellant’s final contention is that, by improvidently using a peremptory strike, his

counsel was ineffective. Instead of challenging a juror for cause, appellant’s counsel used a

peremptory strike after a prospective juror raised her hand in response to the State’s question about

whether anyone had personal experience with the subject of child abuse. Without a record on



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counsel’s trial strategy, the presumption is that counsel used reasonable judgment during voir dire.

Jackson, 877 S.W.2d at 771; Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992).

Appellant’s trial counsel challenged and succeeded in having another prospective juror stricken for

cause, asserting that she could not be fair because of personal experiences. That prospective juror

was very vocal during the State’s and defendant’s voir dire; in contrast, the juror stricken by a

peremptory strike spoke only briefly during voir dire. We cannot second-guess counsel’s trial

strategy by declaring that his failure to challenge the prospective juror for cause was not sound. See

Strickland, 466 U.S. at 689. Based on the record before us, we cannot conclude that counsel’s

failure to challenge the prospective juror for cause fell below an objective standard of reasonableness.

See id. at 693-94.

               When examining whether trial counsel was ineffective, we look at the totality of the

representation rather than isolated acts or omissions. See generally Mitchell v. State, No. 1485-00,

2002 Tex. Crim. App. LEXIS 18 (Tex. Crim. App. Jan. 30, 2002); see also Butler v. State, 716

S.W.2d 48, 54 (Tex. Crim. App. 1986). Here, appellant’s contentions, neither by themselves nor

considered together, establish that appellant’s trial counsel failed to exercise reasonable professional

judgment or that a reasonable probability exists that but for his counsel’s deficient performance, he

would not have been convicted. See Strickland, 466 U.S. at 693-94; Thompson, 9 S.W.3d at 814.

Accordingly, appellant’s claim of ineffective assistance of counsel must fail. We overrule appellant’s

second point of error.



                                           CONCLUSION



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              Having overruled appellant’s points of error, we affirm the judgment of conviction.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: March 7, 2002

Do Not Publish




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