Opinion issued March 20, 2014.




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                 NOS. 01-13-00114-CR AND 01-13-00115-CR
                           ———————————
                    BRIAN BRIGGS BAXTER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 253rd District Court
                         Chambers County, Texas
                        Trial Court Case No. 16388



                         MEMORANDUM OPINION

      Brian Baxter pleaded not guilty to two counts of aggravated sexual assault of

a child under the age of six, a first-degree felony offense. See TEX. PENAL CODE

ANN. § 22.021(f) (West Supp. 2013). The trial court consolidated the counts into
one proceeding and, following a seven-day trial, the jury returned a guilty verdict

on both charges. The jury assessed punishment at sixty-five years’ confinement

and imposed a $10,000 fine on each count. The trial court directed that the

sentences run concurrently.

      On appeal, Baxter contends that insufficient evidence supports the jury’s

guilty verdict and that he was denied effective assistance of counsel in violation of

his constitutional rights. We affirm.

                                    Background

      A girl was practicing for a pre-school performance when she touched

another female student between her legs. The student ran away from the girl and

reported to their teacher that the girl had touched her inappropriately. The teacher

took the girl aside and asked why she did that; the girl responded, “Because that’s

what my mama and daddy do to me.” The teacher asked the girl what she meant,

and the girl responded that Baxter, her father, “sticks his tee-tee in her tu-tu.” The

teacher asked the girl for clarification about each parent’s conduct. The girl told

the teacher that Baxter assaulted her when her mother went to the grocery store or

was sleeping. The girl explained that her mother did not touch her that way, but

that her mother knew about Baxter’s conduct and was very angry with him. The

mother also told the girl that she was disappointed in her. The girl complained of




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burning and pain in her vaginal area. The girl was four or five years old at the

time.

        The teacher took the girl to the nurse’s office while the school contacted

Child Protective Services (CPS).         After her interview with CPS, Deputy D.

Rabalais of the Chambers County Sheriff’s Office, accompanied by a female

employee of the Sheriff’s Office, transported the girl to Child Abuse and Forensic

Services, a nonprofit facility that performs sexual assault examinations and

evidence collection. Brenda Garison, a certified sexual assault nurse examiner

(SANE) with nearly twenty years of experience, examined the girl. During the

examination, the girl told Garison, “My daddy, he hurt my private really bad.” The

girl became anxious when she saw that Garison had a camera, saying, “You’re not

going to take a picture of my private, are you? . . . I don’t want you to take a

picture. . . . People will laugh.” Garison asked the girl if anyone had ever taken a

picture of her private. The girl responded, “my daddy.” The examination showed

trauma to the genital area.

        At trial, the girl testified that she told her teacher that Baxter put his penis in

her vagina. The girl described one assault that took place while she was doing her

homework. She testified that Baxter assaulted her two times, but that she could not

remember the other time.




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        Dr. Alvarez-Sanders, who holds a doctoral degree in clinical psychology,

also testified for the State.   She provides individual counseling and performs

psychological evaluations. A substantial portion of her work involves treatment

and evaluation of children and adolescents; about half of them are in CPS custody

and have histories of neglect, physical abuse, or sexual abuse.

        Dr. Alvarez-Sanders evaluated the girl twice, once in 2010 and again in

2012.    Both times, she diagnosed the girl with post-traumatic stress disorder

(PTSD) consistent with the Diagnostic and Statistical Manual of Mental Disorders

(DSM-IV). The DSM-IV is published by the American Psychiatric Association

and provides standard classification of mental disorders for the use of mental

health professionals in the United States. Dr. Alvarez-Sanders explained that the

inability to recall specific aspects of a trauma is one of the constellation of

symptoms that support a diagnosis of PTSD, and it is one of the symptom that she

identified in the girl.

                                    Discussion

I.      Evidentiary Sufficiency

        A.    Standard of review

        We review evidentiary sufficiency challenges under the Jackson v. Virginia

standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)

(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a

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reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.

Ct. 2781, (1979)).    Under this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      Viewed in the light most favorable to the verdict, the evidence is insufficient

when either: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense; or (2) the evidence conclusively

establishes a reasonable doubt. See Laster, 275 S.W.3d at 518. This standard

applies equally to both direct and circumstantial evidence. King v. State, 895

S.W.2d 701, 703 (Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d).

      We do not weigh any evidence or evaluate the credibility of any witnesses,

as this was the function of the factfinder. Williams, 235 S.W.3d at 750. Instead,

we determine whether both the explicit and implicit findings of the factfinder are

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rational by viewing all the evidence admitted at trial in the light most favorable to

the verdict and resolving any inconsistencies in the evidence in favor of the

verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

      B.     Analysis

      A person commits aggravated sexual assault of a child when he intentionally

and knowingly causes the penetration of the sexual organ of a child. TEX. PENAL

CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2013).1                   Baxter

acknowledges, correctly, that the girl’s testimony, standing alone, is sufficient to

support his conviction for aggravated sexual assault of a child. See TEX. CODE

CRIM. PROC. ANN. § 38.07(b)(1) (West 2011); Bryant v. State, 340 S.W.3d 1, 14

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). He complains, however, that

the girl’s testimony was unreliable and insufficient to prove his guilt beyond a

reasonable doubt, pointing to evidence that the girl has memory problems and that

she occasionally tells lies.

      The girl unequivocally testified that Baxter sexually assaulted her twice.

She described in detail one incident that occurred while she was awake and doing


1
      A person who commits aggravated sexual assault of a child younger than fourteen
      but older than six is subject to a five-year minimum term of imprisonment for this
      first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B), &
      (e) (West Supp. 2013). A person who commits aggravated sexual assault of a
      child under six is subject to a twenty-five-year minimum term of imprisonment.
      See TEX. PENAL CODE ANN. § 22.021(f)(1) (West Supp. 2013). The parties do not
      dispute the girl’s age when the incidents occurred.
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her homework. In making the outcry to her preschool teacher, she used language

consistent with having been assaulted at least twice, explaining “my mama and

daddy do that to me when I’m asleep,” and that “my daddy touches me when my

mama goes to sleep or is at [the grocery store].” Courts give wide latitude to

testimony given by child victims of sexual abuse. See Villalon v. State, 791

S.W.2d 130, 134 (Tex. Crim. App. 1990) (stating that people cannot expect a child

victim to testify with same clarity and ability as mature, capable adults). The jury,

as the trier of fact, “is the sole judge of the credibility of the witnesses and of the

strength of the evidence,” and the jury may choose to believe or disbelieve any

portion of the witnesses’ testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.

Crim. App. 1999); Bargas v. State, 252 S.W.2d 876, 889 (Tex. App.—Houston

[14th Dist.] 2008, no pet.). Viewing the evidence in the light most favorable to the

verdict and resolving any inconsistencies in the verdict’s favor, we hold that

sufficient evidence supports the jury’s verdict finding Baxter guilty of two counts

of aggravated sexual assault of a child under six years of age.

      In addition to challenging the girl’s testimony, Baxter also rejects as

unreliable—and therefore, no evidence—the testimony of Dr. Alvarez-Sanders in

which she opines that the girl suffered from PTSD as a result of having been

sexually abused. Dr. Alvarez-Sanders explained and applied the diagnostic criteria

set forth in the DSM-IV, a manual developed by the American Psychiatric

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Association and widely used in the mental health profession to diagnose mental

disorders. The Court of Criminal Appeals has recognized research concerning the

behavioral characteristics of sexually abused children as a legitimate field of

expertise. See Cohn v. State, 849 S.W.2d 817, 818–19 (Tex. Crim. App. 1993);

Duckett v. State, 797 S.W.2d 906, 914–17 (Tex. Crim. App. 1990); see also

Hernandez v. State, 53 S.W.3d 742, 751 (Tex. App.—Houston [1st Dist.] 2001,

pet. ref’d) (holding that social worker with many years of experience working with

sexually abused children was qualified to explain dynamics and common

characteristics of sexually abused children).    Baxter waived any evidentiary

complaint about Dr. Alvarez-Sanders’s testimony.       See Saldano v. State, 70

S.W.3d 873, 887 (Tex. Crim. App. 2002) (observing that it has consistently been

held that failure to object in timely and specific manner during trial forfeits

complaints about admissibility of evidence, even though the error may concern

defendant’s constitutional rights).

      Baxter also complains that the testimony of Velma Fisher, a clinical social

worker who testified for the defense, lacks evidentiary value. Baxter, however,

may not complain about his own witness’s testimony on appeal. See Prystash v.

State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (explaining that “the law of

invited error estops a party from making an appellate error of an action it

induced”). In any event, neither witness’s testimony affects the sufficiency of the

                                        8
evidence as a whole such that no rational fact finder could have found that each

essential element of the charged offense was proven beyond a reasonable doubt.

The trial court correctly entered judgment on the jury’s verdict.

II.   Ineffective Assistance of Counsel

      In contending that his trial counsel rendered ineffective assistance, Baxter

claims that counsel failed to call certain witnesses and failed to adequately cross-

examine others. In addition, Baxter claims that he wanted to testify in his own

defense, but that his attorney did not call him to the stand. To prevail on an

ineffective-assistance-of-counsel claim, the defendant must show that (1) his

counsel’s performance was deficient and (2) a reasonable probability exists that the

result of the proceeding would have been different absent counsel’s error.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065 (1984); see

also Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).              A

defendant has the burden to establish both prongs by a preponderance of the

evidence; failure to make either showing defeats his ineffectiveness claim.

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). We apply a strong

presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). We also presume that trial counsel’s actions were

reasonably professional and motivated by sound trial strategy. Jackson v. State,




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877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Johnson v. State, 176 S.W.3d 74, 78

(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

      The record must firmly support a claim of ineffective assistance. Thompson,

9 S.W.3d at 813. Where the record does not offer an explanation for counsel’s actions,

we presume that counsel exercised reasonable professional judgment in making all

significant decisions. Jackson, 877 S.W.2d at 771; Broussard v. State, 68 S.W.3d

197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

      “Direct appeal is usually an inadequate vehicle for raising such a claim

because the record is generally undeveloped.” Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005). When the record does not reflect counsel’s

reasons for the challenged conduct, an appellate court will assume a strategic

motivation if any can possibly be imagined, and it will not conclude that the

challenged conduct constituted deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it. Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

      The record does not contain any evidence to support Baxter’s contention that

his counsel failed to call witnesses that would have provided favorable testimony.

It does not identify the subject matter of the testimony that those prospective

witnesses would have provided, nor does it reveal the topics on which counsel

should have elicited testimony from the appearing witnesses. To show ineffective


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assistance of counsel on this ground, the defendant must demonstrate that the

potentially exculpatory witnesses “were available and [the defendant] would

benefit from their testimony.” Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.

App. 2010) (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983));

see Lair v. State, 265 S.W.3d 580, 594–95 (Tex. App —Houston [1st Dist.] 2008,

pet. ref’d) (counsel ineffective when he failed to investigate and call witnesses

where record included affidavits of twenty witnesses who were available and

willing to testify on defendant’s behalf). Further, the record lacks any explanation

from trial counsel for not pursuing the missing testimony. Absent evidence on

these issues, Baxter cannot meet his burden to show that counsel was ineffective.

      As for counsel’s failure to call Baxter to testify in his own defense, nothing

in the record indicates that Baxter expressed a desire to testify, and Baxter does not

contend that he was uninformed or misled into believing that he was not allowed to

testify. Cf. Salinas v. State, 163 S.W.3d 734, 740–41 (Tex. Crim. App. 2005)

(counsel not ineffective where record does not reflect that defendant asserted his

right to testify and counsel failed to protect it). The record sheds no light on any

reason why counsel did not call Baxter to testify. As a result, Baxter has failed to

overcome the presumption that trial counsel acted within the wide range of

professional norms by not calling Baxter to the stand.




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                                     Conclusion

      We hold that sufficient evidence supports the jury’s verdict finding Baxter

guilty of both charged offenses. We further hold that Baxter failed to satisfy his

burden to demonstrate that he received ineffective assistance of counsel. We

therefore affirm the judgment of the trial court.



                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Bland, and Brown.

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




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