      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00801-CR




                           Courtney Benjamine Brissette, Appellant

                                                v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-04-071, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Courtney Benjamine Brissette guilty of sexual assault and

assessed punishment at six years’ imprisonment. See Tex. Penal Code Ann. § 22.011 (West Supp.

2006). In his only point of error, appellant urges that he did not receive effective assistance of

counsel at the hearing on his motion for new trial because his attorney failed to call an essential

witness. Appellant asks the Court to abate the appeal for a further hearing on the new trial motion

so that an adequate record can be made. Unpersuaded by appellant’s argument, we affirm the

conviction.


                                      Trial testimony

               The alleged offense occurred on January 18, 2004, in the residence of Melvin and

Sharae Walker in Kyle. Appellant, Sharae’s nineteen-year-old nephew, lived with his grandparents
in Las Vegas, Nevada, but was visiting in the Walker home for the holidays. The complainant, who

is ten years older than appellant, was a resident of Austin and a long-time friend of the Walkers who

was spending the night with them, as she often did. The complainant testified that she did not know

appellant prior to meeting him at the Walker home a few weeks before the night in question.

               The complainant testified that she was sleeping on the couch in the downstairs family

room. The other occupants of the house, including appellant and the Walkers, were sleeping

upstairs. The complainant testified that between 1:00 and 2:00 a.m., she “was jolted awake because

Courtney had put his—had shoved his penis in my mouth and had woken me.” The complainant said

that she pushed appellant away and he went back upstairs. She reported what had happened to

Melvin Walker, and the police were eventually called.

               Appellant testified that he first met the complainant in 1996 or 1997 at a family

gathering. With regard to the alleged incident, appellant said, “I had my penis in my hand. I walked

over to the couch and I touched [the complainant] on her shoulder. She was asleep on the couch and

the television was off so what I did was I tapped her on the shoulder and she started moving around.”

Appellant testified that the complainant began to rub her nose with her hand. As she did this, “I had

yawned and I had stretched and during this time I had fell forward. And then when I fell forward,

I caught myself on the couch and saw my sexual organ was close to her.” Appellant said that the

complainant’s hand briefly touched his penis, but he denied that his penis entered her mouth or even

touched her lips.

               After being confronted by Melvin Walker about his conduct, appellant apologized

to the complainant. He told her, “I guess I went about this the wrong way. I’m sorry.” Appellant



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explained at trial that “the reason I told him that was because instead of me even having my male

organ out when I approached her, I should have asked her first and then seen what she said.”

                The jury found that appellant sexually assaulted the complainant by penetrating her

mouth with his sexual organ. Id. § 22.011(a)(1)(B).


                                        Motion for new trial

                Appellant obtained new counsel following his trial. This attorney filed a motion for

new trial asserting that appellant and the complainant had had a sexual relationship for several years,

that appellant’s trial counsel was aware of this relationship, and that counsel was ineffective because

he did not present evidence of this relationship at the trial.

                Appellant was the only witness to testify at the hearing on the motion for new trial.

He said that he met the complainant in 1998 at the Walker home and soon began a sexual

relationship with her. At that time, appellant was fifteen years old and living in Austin with his

mother and siblings. Appellant said that his first sexual encounter with the complainant happened

at a friend’s house. He said that on that occasion the complainant “gave me oral sex.” Appellant

testified that this relationship continued until late 1999, when he moved from Austin to California

to live with his father. He said that he and the complainant continued to meet whenever he visited

Austin. He estimated that he and the complainant had engaged in sexual activity—primarily oral sex

performed on him by the complainant—forty to fifty times.

                Appellant testified that he last had sex with the complainant on the night of January

16, 2004, two days before the incident underlying this prosecution. That night, the complainant was

sleeping in an upstairs bedroom. Appellant had been in the room earlier with the complainant,

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watching television. He returned to the room and found the complainant sitting on the edge of the

bed. Appellant testified, “I asked her about me and her having sex. She gave me the okay.”

Appellant said that the complainant then gave him oral sex.1

               Appellant’s description of his conduct on January 18 was basically consistent with

his trial testimony. He said that he went to the family room where the complainant was sleeping and

tapped her on the shoulder to wake her. “She yawned and stretched, I was right there in front of her.

Stretching my belt for her and I caught myself, pulled back, my penis in her hand, and she just woke

up.” He added, “She had her hand wrapped around my penis and then she looked up, she saw I

wasn’t trying to do nothing so she let go and then she sat up.” The complainant told appellant that

she was angry, and he left the room. Appellant added that the complainant had told him previously

that if he wanted to have sex when she was asleep “that it was all right, all I had to do is just go

ahead and do whatever I was going to do.”

               Appellant testified that he told his trial counsel that he and the complainant had a

prior sexual relationship. “I told him that I didn’t remember all the details, but I told him that I do

remember that me and this person when I was down here before and in between time had a sexual

relationship.” According to appellant, his attorney “just didn’t believe it and didn’t want to put it

in front of the Court.”

               Appellant’s trial counsel did not testify. The trial court overruled the motion for new

trial at the conclusion of the hearing, and appellant perfected this appeal.


  1
    The complainant also referred to this evening in her trial testimony. According to her, appellant
entered the room while she was sleeping and began to watch television. She ordered him out of the
room, closed the door behind him, and locked it.

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                                       Discussion

               After the appeal had been pending for eighteen months, the Court ordered the

appointment of new counsel for appellant after his original appellate counsel, the attorney who filed

the motion for new trial and represented him at the hearing, failed to file a brief or appear at a

hearing to explain his failure to pursue the appeal.2 The brief filed by appellant’s current attorney

raises a single point of error: appellant’s second attorney rendered ineffective assistance at the new

trial hearing because he did not call appellant’s trial counsel to testify regarding that attorney’s

defensive strategy and his reasons for not adducing testimony regarding the alleged prior sexual

relationship between appellant and the complainant. In other words, appellant contends that his

second attorney was ineffective because he did not make a record adequate to support a claim on

appeal that appellant’s first attorney was ineffective. See Andrews v. State, 159 S.W.3d 98, 103

(Tex. Crim. App. 2005) (“We ordinarily need to hear from counsel whether there was a legitimate

trial strategy for a certain act or omission.”); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001) (“When the record is silent on the motivations underlying counsel’s tactical decisions, the

appellant usually cannot overcome the strong presumption that counsel’s conduct was reasonable.”).

Appellant does not ask the Court to reverse his conviction. Instead, he asks that the appeal be abated

for a further hearing on the motion for new trial at which testimony from appellant’s trial counsel

can be received.




   2
      Hereafter, we will refer to the attorney who represented appellant at trial as appellant’s trial
counsel or first attorney, the attorney who filed the motion for new trial and represented appellant
at the hearing as appellant’s second attorney, and the attorney who filed the brief on appeal as
appellant’s current attorney.

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                A criminal defendant is constitutionally entitled to the assistance of counsel at a

hearing on a motion for new trial. Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978).

The right to counsel means the right to effective assistance of counsel. Strickland v. Washington,

466 U.S. 668, 685-86 (1984). To prevail on his claim that his second attorney was ineffective at the

new trial hearing, appellant must demonstrate that (1) the second attorney’s performance at the

hearing fell below an objective standard of reasonableness, and (2) a reasonable probability exists

that, but for this deficient performance, the result of the proceeding would have been different. Id.

at 687-88; Ex parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005).

                Just as there is no evidence in the record regarding the first attorney’s strategy at trial,

there no evidence in the record regarding the second attorney’s strategy at the new trial hearing.

Appellant argues that there can be no plausible strategic reason for his second attorney, having raised

the issue of ineffective assistance of trial counsel in the motion for new trial, to have failed to call

his first attorney to explain his conduct at trial. See Andrews, 159 S.W.3d at 103 (holding that trial

counsel was ineffective, despite absence of testimony regarding strategy, where there could be no

reasonable strategic justification for counsel’s conduct). We can, however, conceive of a good

reason for appellant’s second attorney to have proceeded as he did: he knew that appellant’s first

attorney would testify that appellant never told him about the alleged sexual relationship with the

complainant. We do not state this as a fact, but only to show that the second attorney may have had

a sound, professional reason for failing to call trial counsel to testify at the new trial hearing. Under

the circumstances, appellant has not overcome the presumption that his second attorney’s conduct

was reasonable.



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                Even if appellant’s trial counsel had testified at the new trial hearing and

acknowledged being told of appellant’s claimed sexual relationship with the complainant, there is

no reasonable probability that this would have had an effect on the outcome of either the new trial

hearing or an appeal raising ineffectiveness of trial counsel. In a prosecution for sexual assault,

evidence of the complainant’s past sexual behavior is generally not admissible. Tex. R. Evid.

412(b). There is an exception to this rule where the complainant’s past sexual behavior was with

the accused and is offered by the accused on the issue of whether the complainant consented to the

sexual behavior that is the basis of the charged offense. Tex. R. Evid. 412(b)(2)(B). But appellant

testified at his trial that the alleged penetration of the complainant’s mouth by his penis did not

occur, and he did not testify to the contrary at the new trial hearing. In light of appellant’s denial of

the conduct alleged in the indictment, trial counsel could have reasonably concluded that consent

was not an issue and there was no basis for the admission of evidence regarding the complainant’s

past sexual conduct. Further, it would have been reasonable for trial counsel to conclude that even

if the court were to allow appellant to testify regarding his alleged sexual relationship with the

complainant, it would not be a sound defensive strategy for appellant to first testify that the

complainant was a liar and then to testify in the alternative that she was a person who willingly

engaged in fellatio while asleep.

                Appellant has not demonstrated that his second attorney’s performance at the new

trial hearing was deficient. There is no reason for the Court to abate the appeal for a further hearing

on the motion for new trial. The point of error is overruled, and the judgment of conviction is

affirmed.



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                                          ___________________________________________

                                          W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: October 2, 2007

Do Not Publish




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