AFFIRMED and Opinion Filed March 9, 2020




                                    S   In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                  No. 05-18-01311-CR

                      JOSEPH DAVID SCARBOROUGH, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                    On Appeal from the 219th Judicial District Court
                                 Collin County, Texas
                        Trial Court Cause No. 219-80169-2018

                         MEMORANDUM OPINION
                 Before Justices Myers, Whitehill, and Pedersen, III
                            Opinion by Justice Whitehill
      Appellant was convicted of continuous sexual abuse of a child and sentenced

to forty-seven years in prison. In two issues, he argues that his trial counsel rendered

ineffective assistance and the trial court abused its discretion by allowing more than

one outcry witness.

      We conclude the record does not demonstrate that counsel’s performance fell

below an objective standard of reasonableness. We further conclude that the court

did not abuse its discretion by allowing two outcry witnesses to testify about

different acts of abuse, and even if the evidence was erroneously admitted, it was

harmless. We thus affirm the trial court’s judgment.
                                 I. BACKGROUND

      Appellant told his cousin, Amye Cox, that he molested his stepson, JG, when

JG was nine years old and that it continued for a year.

      Cox later asked JG if appellant had molested him when he was a child.

Specifically, Cox asked JG if appellant (i) made JG touch him; (ii) made JG give

him oral sex; and if (iii) appellant’s penis “ever went inside” JG. JG responded “yes”

to all three questions and said that it happened every couple of weeks for a year.

      When confronted by Cox and other family members, appellant admitted he

abused JG for four to five months. Cox’s sister contacted the authorities.

      McKenzie McIntosh forensically interviewed JG at the Collin County

Children’s Advocacy Center and testified generally that JG reported appellant’s

abuse and that he provided details. When the State asked McIntosh whether JG told

her that appellant’s hand touched JG’s genitals and that appellant’s genitals touched

JG’s buttocks, McIntosh replied, “Yes.”

      Corporal Danny Stasik with the Collin County Sheriff’s Office testified that

he interviewed appellant and appellant admitted that he sexually abused JG

“multiple times,” including: (i) contacting JG’s anus and mouth with his male sexual

organ, (ii) contacting JG’s genitals with his hand, (iii) contacting JG’s buttocks with

his genitals, and (iv) contacting JG’s hand with his genitals. Appellant admitted

that each of these offenses happened over several months when JG was under

fourteen.
                                          –2–
        JG was eighteen at the time of trial and said that he was eight or nine years

old the first time something sexual happened with his stepfather. JG testified in

detail about the abuse.

        Appellant was found guilty of continuous sexual abuse of a child and was

sentenced to forty-seven years in prison.

                                             II. ISSUES

A.      First Issue:       Does the record demonstrate ineffective assistance of
        counsel?

        No, because there was no record evidence regarding trial counsel’s strategy.

        Appellant’s first issue argues that trial counsel rendered ineffective assistance.

Specifically, he contends that his trial lawyer erred by failing to object when the

State asked appellant’s aunt if she “believed appellant would sexually assault

another child.”1

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

show two elements: deficient performance and prejudice. Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Strickland v. Washington, 466

U.S. 668 (1984). The claim must be firmly founded in the record. Goodspeed, 187




1
  The challenged testimony requires some context. Aunt Nelda testified that she asked appellant if he was
afraid that he was going to molest his own son, and appellant said “maybe.” Then, the following
testimony about which appellant complains:
         Q. . . . [W]hat’s going through your mind when the defendant told you maybe, maybe he might
         [do] the same thing to [his son]?
         A. I honestly thought he probably would have. That was why he was asking, he had told Amye that
         particular time, I honestly thought that.
                                                  –3–
S.W.3d at 392. As a result, direct appeal is usually an inadequate vehicle for raising

such a claim because the record is generally undeveloped. Id. This is particularly

true with respect to the deficient performance element because (i) we review

counsel’s conduct with great deference, without hindsight’s distorting effects, and

(ii) counsel’s reasons for failing to do something often do not appear in the record.

See id.

      Trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective. Id. Absent such an opportunity, an

appellate court should not find deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it. Id. “An appellant’s

failure to satisfy one prong of the Strickland test negates a court’s need to consider

the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

      Because the reasonableness of counsel’s choices often involves facts that do

not appear in the appellate record, an application for writ of habeas corpus is

generally the more appropriate vehicle to raise ineffective assistance of counsel. See

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

      Here, there was no factual development of appellant’s ineffective assistance

of counsel claim in the trial court. Although appellant filed a new trial motion, that

motion did not raise ineffective assistance as a ground, and it was overruled by

operation of law.



                                         –4–
      Assuming for the sake of argument that the challenged testimony was

inadmissible, the record is silent as to why counsel did not object. We assume

counsel had a strategy if any reasonable strategic motivation can be imagined. See

Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Deciding not to object

to inadmissible evidence can be a plausible trial strategy. See McKinny v. State, 76

S.W.3d 463, 473-74 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

      Reviewing the totality of the representation and the circumstances of the case,

we can imagine some strategic motivation for not objecting to the testimony. Thus,

appellant fails to demonstrate that counsel’s conduct was so outrageous that no

competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392–

93.

      Accordingly, we resolve appellant’s first issue against him.

B.    Second Issue: Did the trial court abuse its discretion by allowing two
      outcry witnesses?

      No, because the witnesses testified about separate events. And any error was

harmless because JG gave substantively similar testimony.

      The trial court held an outcry hearing and ruled that McIntosh, the forensic

interviewer, could testify regarding two issues: (i) appellant touching JG’s buttocks,

and (ii) appellant touching JG’s genitals. McIntosh testified to those two acts.

      Appellant’s second issue argues that the trial court abused its discretion in

allowing the State to present two outcry witnesses. According to appellant, Cox was

                                         –5–
the first person JG told about the abuse, so McIntosh (the forensic examiner) should

not also have been allowed to testify.2

        The “outcry” statute excludes from hearsay a child’s statements describing the

alleged sexual offense that the child made to the first adult other than the defendant.

See TEX. CODE CRIM. PROC. art. 38.072, § 2; Sanchez v. State, 354 S.W.3d 476, 484

(Tex. Crim. App. 2011). There can be only one outcry witness per event of sexual

abuse. See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).

        The trial court has broad discretion to determine which of several witnesses is

an outcry witness to a particular event, and unless it clearly abuses its discretion, we

will not disturb its decision. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.

App. 1990). A trial court does not abuse its discretion unless its decision falls

outside the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000).

        Appellant’s argument rests on the premise that McIntosh’s testimony

concerned the same incidents that Cox had already testified about (appellant

touching JG’s buttocks and genitals). We disagree.

        The indictment alleged that appellant committed two or more acts of sexual

abuse during a period of thirty or more days in duration, including two instances of


    2
      Appellant now argues that Cox covered the same outcry as McIntosh when she defined “molested”
for JG and JG agreed that he had been molested. But this complaint was not raised in the court below. See
Armijo v. State, No. 05-18-00489-CR, 2019 WL 6888518, at *5 (Tex. App.—Dallas Dec.18, 2019, no pet.)
(error not preserved when arguments on appeal do not comport with trial objections). Instead, appellant
argued that the Cox outcry concerning anal penetration necessarily included touching the buttocks.
                                                  –6–
aggravated sexual assault (appellant’s penis contacted JG’s anus and appellant’s

penis contacted JG’s mouth) and three instances of indecency with a child by sexual

contact (appellant’s hand touching JG’s penis, appellant causing JG’s hand to touch

appellant’s penis, and appellant causing JG’s buttocks to touch appellant’s penis).

Thus, there were five separate instances of alleged abuse.

      Cox testified that when she asked JG about the abuse, he did not know what

the word “molest” meant. Cox defined the word as “where an adult man or an adult

woman touches you in your private area where they’re not supposed to.” Then, Cox

asked JG whether appellant had done that to him, and JG responded, “Yes, ma’am.”

JG then responded “yes” to three more questions: whether appellant made him touch

appellant’s private part, whether appellant made JG give him a “blow job,” and

whether appellant ever put his private part into JG. When defense counsel asked

Cox if she asked JG whether appellant had ever touched his genitals, Cox said, “No.”

      McIntosh testified as follows:

      Q: [During the interview, did [JG] outcry to the defendant’s hand
      touching [JG’s] - - his genitals?

      A: Yes

      Q: And did he outcry to the defendant’s genitals touching [JG’s]
      buttocks?

      A: Yes

      Q: And he– those weren’t the only two things he outcried to; is that
      right?

      A: There was more.

                                          –7–
McIntosh did not describe the additional outcries.

      McIntosh’s testimony was limited to two types of abuse that were not covered

by Cox’s testimony. Accordingly, the trial court did not abuse its discretion by

allowing McIntosh to testify about the outcry concerning those incidents.

      Moreover, even if the testimony was erroneously admitted, JG provided

substantially similar testimony concerning the same incidents McIntosh described,

but in greater detail. Therefore, we conclude that there is a fair assurance that

McIntosh’s testimony did not influence the jury or had but a slight effect. See

Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.—Dallas 2005, pet. ref’d)

(substantially similar inadmissible hearsay harmless where victim provided explicit

and detailed testimony).

      Thus, we resolve appellant’s second issue against him.

                                III. CONCLUSION

      Having resolved appellant’s issues against him, we affirm the trial court’s

judgment.

                                          /Bill Whitehill/
                                          BILL WHITEHILL
                                          JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
1801311F.U05




                                        –8–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

JOSEPH DAVID SCARBOROUGH,                     On Appeal from the 219th Judicial
Appellant                                     District Court, Collin County, Texas
                                              Trial Court Cause No. 219-80169-
No. 05-18-01311-CR          V.                2018.
                                              Opinion delivered by Justice
THE STATE OF TEXAS, Appellee                  Whitehill. Justices Myers and
                                              Pedersen, III participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered March 9, 2020




                                        –9–
