Affirmed and Memorandum Opinion filed August 14, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00750-CR

                  ANTHONY WAYNE SONNIER, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 56th District Court
                          Galveston County, Texas
                     Trial Court Cause No. 11-CR-3102

                 MEMORANDUM                      OPINION


      In four issues, appellant Anthony Wayne Sonnier challenges his conviction
of aggravated sexual assault of a child and his sentence of thirty-five years in
prison. Appellant argues that the jury charge erroneously omitted a community
supervision instruction, that his attorney provided ineffective assistance on the
community supervision issue, and that the trial court incorrectly denied his motion
for new trial raising additional complaints of ineffective assistance of counsel. We
conclude, however, that appellant was not entitled to a community supervision
instruction, that his attorney’s performance regarding community supervision was
not deficient, and that the trial court did not abuse its discretion in denying his
motion for new trial. We therefore affirm.

                                   BACKGROUND

      Appellant was charged with continuous sexual abuse of a young child. Tex.
Penal Code Ann. § 21.02 (West 2011). A.W., the complainant, is the daughter of
appellant’s cousin. In July 2011, A.W. informed her mother and subsequently
police officers that she had been sexually assaulted by the appellant numerous
times over the course of several years. At trial, the complainant testified that the
first instance occurred in 2003, when she was nearly eight years old, and that the
acts continued until 2011, when she was fourteen. The complainant’s mother
testified regarding the relationship between herself, her daughter, and the appellant,
as well as to her daughter’s 2011 acknowledgement of the appellant’s conduct.
Her mother also testified that A.W. had previously indicated to her that the
appellant was abusing her, but she had recanted the accusation the next day.

      Appellant had also been charged with the sexual assault of another child in a
separate case.   Although appellant’s trial counsel did not intend to allow the
alleged victim of this extraneous offense to testify, appellant testified at trial that
he had never sexually abused any child. The State argued that this statement
“opened the door” to allow the other victim to testify concerning appellant’s
alleged sexual conduct. The trial court allowed the other victim to testify about
several alleged instances of sexual contact with appellant. Appellant contends that
the complainant in this case and the other victim are in collusion, but several
witnesses testified that the two victims had never seen each other.


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      At the close of the guilt-innocence phase of the trial, the court instructed the
jury regarding the offense of continuous sexual abuse and the lesser included
offense of aggravated sexual assault of a child. A person commits the offense of
continuous sexual abuse of a young child if, during a time period of thirty or more
days, that person commits two or more acts of sexual abuse of a child. Tex. Penal
Code Ann. § 21.02(b)(1). At the time each act is committed, the actor must be
seventeen years of age or older and the victim or victims must be younger than
fourteen. Id. § 21.02(b)(2). The offense became effective on September 1, 2007.
Id. § 21.02; Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007
Tex. Gen. Laws 1120, 1127, 1148. A person commits the lesser included offense
of aggravated sexual assault if he intentionally or knowingly causes the penetration
of the sexual organ of a child younger than fourteen. Tex. Penal Code Ann. §
22.021(a)(1)(B), (a)(2)(B) (West 2011).

      The jury found appellant not guilty of the continuous sexual assault charge
but found him guilty of the lesser included offense of aggravated sexual assault of
a child younger than fourteen. He was sentenced to thirty-five years in prison.

      Appellant then obtained new counsel and filed a motion for new trial. In his
motion, appellant argued that his trial counsel was ineffective for four reasons,
three of which he also raises on appeal. First, appellant argued that his counsel
failed to investigate the criminal background of the complainant’s mother.
Second, appellant asserted that his trial counsel failed to interview witnesses who
could have established that there was a relationship between the complainant and
the other alleged victim. Third, appellant alleged that his trial counsel failed to
obtain evidence and investigate witnesses who could have demonstrated that
appellant was living in Austin during part of the time period in which he was
accused of committing sexual offenses against the complainant.

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      During the hearing on the motion for new trial, appellant’s trial counsel was
given an opportunity to respond to the allegations of ineffective assistance. He
indicated his trial strategy regarding the first two allegations. First, trial counsel
testified that he did not want to discuss the criminal history of the complainant’s
mother because he feared that an honest response by her would bolster her
credibility to the detriment of appellant. Second, trial counsel indicated that he did
not interview witnesses to establish the existence of a pre-trial relationship between
the complainant and the other alleged victim because he wanted to minimize the
amount of time that the jury focused on the other victim’s story. The trial court
denied the motion.

                                     ANALYSIS

      Appellant raises four issues on appeal. In his first issue, appellant contends
that the jury charge was confusing and should have included an instruction on
community supervision. In his second and third issues, appellant argues for the
first time on appeal that his trial counsel was ineffective because he (1) failed to
object to the punishment-phase jury charge and (2) misstated the law in his closing
argument.    In his fourth issue, appellant contends the trial court abused its
discretion when it denied his motion for new trial based on ineffective assistance of
counsel. Within this issue, appellant argues that his trial counsel’s performance
was deficient because he (1) failed to investigate the criminal history of the
complainant’s mother; and (2) failed to interview and subpoena witnesses who
would have (a) questioned the mother’s reputation within the community, (b)
established the existence of a relationship between the complainant and the other
alleged victim, and (c) given concrete evidence that appellant was living in Austin
during part of the time period in which appellant was accused of committing sexual
offenses against the complainant. We address each of these issues in turn.

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I.    Appellant was not entitled to a community supervision instruction.

      In his first issue, appellant contends that the trial court erred in not including
a community supervision instruction in the jury charge. We disagree because
appellant was convicted of aggravated sexual assault of a child and thus is not
eligible for community supervision.

      When reviewing claims of jury charge error, we use a two-step process.
First, we determine whether an error actually exists in the charge. Ngo v. State,
175 S.W.3d 738, 743 (Tex. Crim. App. 2005).            Then, if an error exists, we
determine whether it was harmful using the framework outlined in Almanza v.
State, 686 S.W.2d 157 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d
348, 350 (Tex. Crim. App. 2009). Under Almanza, the degree of harm required for
reversal depends on whether an objection to the error was made at trial. If no
objection was made, we will not reverse unless the error resulted in “egregious
harm” such that appellant was denied a “fair and impartial trial.” Neal v. State,
256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (quoting Almanza, 686 S.W.2d at
171). If an objection was made at trial, however, we consider whether appellant
has demonstrated “some harm” from the error. Ngo, 175 S.W.3d at 744.

      Although appellant focuses his first issue on the lack of a community
supervision instruction in the punishment-phase jury charge, his statement of facts
also includes an argument regarding the guilt-phase charge on continuous sexual
abuse. Appellant was found not guilty of continuous sexual abuse, and he does not
explain how any error in the jury charge regarding that offense harmed him.
Nevertheless, we discuss his argument regarding that charge because it provides
background for our analysis of his punishment-phase issue.

      As noted above, the statute creating the offense of continuous sexual abuse
of a young child became effective September 1, 2007. A.W. turned fourteen on
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October 8, 2010. Therefore, in order to convict appellant, the jury was required to
find that he committed two or more acts of sexual abuse against the complainant
between September 1, 2007 and October 8, 2010.

      The trial court correctly charged the jury in the guilt phase that to find the
defendant guilty of continuous sexual abuse of a young child, it must unanimously
find that appellant committed two or more acts of sexual abuse against the
complainant, over a period of thirty days or more, between September 1, 2007 and
October 8, 2010. See Tex. Penal Code Ann. § 21.02(d). The court also included
this same window of time in its instructions relating to the lesser included offense
of aggravated sexual assault of a child. The charge stated that any testimony
concerning offenses by appellant other than the offenses alleged against him in this
case could only be considered as evidence of appellant’s or the child’s state of
mind and of the relationship between appellant and the child.

      Although appellant concedes that the time window for the continuous sexual
abuse offense was correctly stated, he argues that the charge was confusing in that
it informed the jurors that they were “not required to agree unanimously on which
specific acts o[f] sexual abuse, if any, were committed by the defendant or the
exact dates when those acts were committed.” (emphasis added by appellant).
Appellant asserts this instruction, which was taken verbatim from section 21.02(d)
of the Penal Code, had the effect of broadening the acts under consideration to
include those committed in 2005 and 2006. Thus, appellant contends he was
entitled to a punishment-phase instruction on community supervision under the law
in effect at that time. See Tex. Code Crim. Proc. Ann. art. 37.07 § 2(b) (West
2006).

      We disagree that the instruction had such an effect. The Court of Criminal
Appeals analyzed a jury charge for continuous sexual abuse of a young child in

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Taylor v. State, 332 S.W.3d. 483 (Tex. Crim. App. 2011), concluding that the
charge is “erroneous if it presents a much broader chronological parameter than is
permitted by law.” Taylor, 332 S.W.3d at 488-489. There, the absence of an
instruction focusing the jury on acts committed after the defendant turned
seventeen was erroneous because the record contained evidence of sexual offenses
the defendant committed before turning seventeen. Similarly, in Martin v. State,
the Austin Court of Appeals concluded that a jury charge for continuous sexual
abuse against a young child was erroneous if it lacked an instruction requiring the
jurors to find that the requisite acts were committed on or after September 1, 2007.
335 S.W.3d 867, 876 (Tex. App.—Austin 2011, pet. ref’d).

      The jury charge in this case, however, contains no such error and tracks the
statutory language precisely. See Tex. Penal Code Ann. § 21.02(d). The charge
informed the jury that it could only convict appellant on the basis of acts
committed within the time window permitted by law even as it instructed them that
jurors did not have to agree unanimously on the exact dates those acts were
committed. We see nothing in the latter instruction that would suggest to a jury
that it could convict appellant of continuous sexual abuse based on acts outside the
time window they were told to consider. We “must assume that the jurors read and
understood the [jury] charge as a whole and that they took the challenged
instruction into account.” Martin, 335 S.W.3d at 874. Moreover, appellant was
ultimately convicted only of one lesser included offense of aggravated sexual
assault of a child. As explained above, the jury was instructed that such an assault
had to occur between September 1, 2007 and October 8, 2010, and no non-
unanimity instruction was given with respect to this offense.

      For these reasons, we reject appellant’s argument that his conviction could
be based on an act occurring before September 1, 2007, and we apply the law as of

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that date to determine whether a community supervision instruction should have
been included in the punishment-phase charge. Jury-recommended community
supervision is governed by Article 42.12 section 4 of the Code of Criminal
Procedure.   A defendant is not eligible for community supervision if he has
committed a crime listed in Article 42.12 section 3g(a)(1)(C), (E), or (H) if the
victim of the offense was younger than fourteen at the time the offense was
committed. See Tex. Code Crim. Proc. Ann. art. 42.12 § 4(d)(5) (West 2006).
Appellant was convicted of aggravated sexual assault of a child younger than
fourteen, which is the offense listed in section 3g(a)(1)(E). This exception to
community supervision eligibility took effect on September 1, 2007. Act of May
18, 2007, 80th Leg., R.S., ch. 593, § 1.05, 2007 Tex. Gen. Laws 1120, 1123.

      In sum, the jury unanimously found that the appellant had committed an
aggravated sexual assault against complainant between September 1, 2007 and
October 8, 2010—a time period when she was younger than fourteen. Therefore,
appellant was not eligible for jury-recommended community supervision, and the
trial court did not err in omitting an instruction on community supervision from the
punishment-phase charge. We overrule appellant’s first issue.

II.   Trial counsel was not ineffective for failing to object to the jury charge
      and failing to mention community supervision in closing argument.
      In his second and third issues, appellant contends that trial counsel rendered
ineffective assistance because he (1) failed to object to the lack of a community
supervision instruction in the punishment-phase jury charge and (2) misstated the
minimum sentence for which appellant was eligible by not mentioning to the jury
that appellant was eligible for community supervision. Because we have already
determined that appellant was not eligible for community supervision, we hold that
trial counsel did not render ineffective assistance in either respect. We therefore


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overrule appellant’s second and third issues.

III.   The trial court did not abuse its discretion when it denied appellant’s
       motion for new trial.
       In addition to his ineffective assistance of counsel claims raised for the first
time on appeal, discussed above, appellant made several claims of ineffective
assistance of counsel in his motion for new trial. In particular, appellant’s motion
complained that his trial counsel’s performance was ineffective for three reasons
that he also raises in his fourth issue on appeal. First, appellant claimed that his
trial counsel failed to investigate into the criminal background and obtain the
criminal record of the complainant’s mother. Second, he contended that counsel
failed to interview witnesses who could have established that there was a
relationship between the complainant and the alleged extraneous victim. Third, he
asserted that counsel failed to examine witnesses who could have demonstrated
that appellant was living in Austin during some of the time period within which
appellant allegedly committed the crimes.

       A.     Standard of review

       We review a trial court’s decision on a motion for new trial for an abuse of
discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007).
Under this deferential review, we reverse the trial court’s decision only if the
decision was clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453, 457
(Tex. Crim. App. 2012). Given the absence of express factual findings, we view
the evidence in the light most favorable to the trial court’s ruling and assume that
the court made implicit findings of fact that support its ruling as long as the record
supports those findings. Hall v. State, 283 S.W.3d 137, 165 (Tex. App.—Austin
2009, pet. ref’d). We will reverse only if no reasonable view of the record could
support the trial court’s ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim.

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App. 2006). We must not substitute our own judgment for that of the trial court
and must uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009).

      Through this lens of deferential review, we apply the two-pronged test for
ineffective assistance of counsel outlined in Strickland v. Washington, 466 U.S.
668 (1984). See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
This test required appellant to demonstrate by a preponderance of the evidence that
1) counsel’s performance was deficient because it fell below an objective standard
of reasonableness (performance prong); and 2) the deficient performance caused
appellant prejudice because there is a probability sufficient to undermine
confidence in the outcome that but for counsel’s unprofessional errors, the result of
the proceeding would have been different (prejudice prong). See id. Appellate
review of counsel’s representation is “highly deferential and presumes that
counsel’s actions fell within the wide range of reasonable and professional
assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We will
not second-guess strategic decisions made by trial counsel unless the challenged
conduct was “so outrageous that no competent attorney would have engaged in it.”
Ex parte Harrington, 310 S.W.3d 452, 459 (Tex. Crim. App. 2010).

      Applying this standard to the three complaints appellant presses on appeal,
we conclude that the trial court did not abuse its discretion in denying appellant’s
motion for new trial because the trial court could reasonably have found that
appellant failed to prove at least one of the required elements of an ineffective
assistance claim as to each complaint.




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      B.     Counsel’s failure to investigate the criminal background of the
             complainant’s mother did not render his performance deficient.
      At trial, the complainant’s mother testified regarding the relationship
between herself, her daughter, and appellant, and she recounted the complainant’s
2011 report of appellant’s conduct. The mother also testified the complainant had
previously indicated that appellant was abusing her, but the complainant recanted
the accusation the next day. Appellant contends that his trial counsel did not
thoroughly investigate the mother’s background or allow witnesses to testify who
could have questioned her reputation for truthfulness.        Specifically, appellant
contends that the complainant’s mother could have been impeached because she
had been convicted of theft, a crime involving moral turpitude.

      Because this issue was raised in the motion for new trial, appellant’s trial
counsel had the opportunity to explain his reason for not questioning the mother
about her criminal background. Trial counsel explained that although he was made
aware of the mother’s prior conviction for theft, he was told that it had occurred
more than ten years before the trial.       Given the length of time between her
conviction and appellant’s trial, trial counsel testified that did not want to bring up
the issue of the mother’s criminal history because he feared that an honest response
would bolster her credibility to the detriment of his client. Because this is a
plausible concern with a remote conviction, we conclude the trial court did not
abuse its discretion in finding that such a strategy was not “so outrageous that no
competent attorney would have engaged in it.” Harrington, 310 S.W.3d at 459.
Moreover, the evidence would likely have been inadmissible since the conviction
had occurred more than ten years before the start of the trial. See Tex. R. Evid.
609(b) (providing that evidence of a conviction is inadmissible if more than ten
years have passed since the date of conviction or release from confinement). In
light of trial counsel’s testimony regarding his strategy as well as the likely
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inadmissibility of the evidence, appellant has not demonstrated that the trial court
abused its discretion when it denied his motion for new trial based on this
complaint.

         C.    There is evidence that trial counsel’s decision not to seek witnesses
               to address the relationship between the alleged victims was based
               on a reasonable trial strategy.
         Likewise, we cannot say the trial court abused its discretion in denying
appellant’s motion for new trial on his complaint that trial counsel failed to
interview witnesses who could have testified as to the existence of a relationship
between the complainant and the alleged victim of an extraneous offense. As
discussed above, appellant “opened the door” with respect to the testimony of the
other alleged victim by stating at trial that he had never committed sexual acts
against any child. This statement allowed the State to bring forward the alleged
victim of the extraneous offense to rebut appellant’s claim.            In addition to
testifying about the extraneous offense, the other victim also testified that she had
no prior relationship with the complainant. Appellant claims that his motion for
new trial should have been granted because two witnesses claimed, during the
hearing on appellant’s motion for new trial, that they were ready and able to testify
during the guilt phase that there was a pre-existing relationship between the
complainant and the other victim, yet trial counsel declined to put them on the
stand.

         During the hearing on the motion for new trial, trial counsel indicated that he
had consciously considered the best method to mitigate the harm caused by the
“open door.” He testified that he wanted to minimize the amount of time that the
jury focused on the other victim’s story. He anticipated that further discussion of
the extraneous offense might have bolstered the perceived validity of the two
alleged victims’ testimony, and that this cost outweighed any benefit that calling
                                            12
two additional witnesses may have offered in suggesting a potentially collusive
relationship between the alleged victims. Trial counsel did allow appellant to
testify as to the existence of a pre-trial relationship between the alleged victims,
however.

      Based on this evidence, the trial court could find that it was a reasonable trial
strategy to avoid focusing further attention on the other victim by calling additional
witnesses to address her relationship with the complainant, especially where the
jury had already heard evidence contradicting the other victim’s story that she did
not know the complainant.        Moreover, appellant has not explained why it is
reasonably probable that additional evidence of a relationship between the victims
would have led to a different result. Accordingly, we hold that the trial court did
not abuse its discretion by denying the motion for new trial based on this
complaint.

      D.     Appellant did not show prejudice from trial counsel’s failure to
             offer additional evidence regarding appellant’s residence.
      Finally, appellant claimed at the hearing on the motion for new trial that his
trial counsel was ineffective because he did not obtain certain evidence verifying
that appellant lived in Austin sometime between 2001 and 2004 and did not call a
potential alibi witness to testify about the time period when appellant lived in
Austin.    Appellant claims that trial counsel had access to material evidence
demonstrating that appellant was living in Austin during the time when
complainant alleged the sexual advances began. The alleged alibi witness, who did
not testify at trial, testified in the hearing on the motion for new trial that appellant
was living “off and on” in Austin for several years.

      Trial counsel was not questioned about this complaint at the hearing on
appellant’s motion for new trial. Ordinarily, counsel should have an opportunity to

                                           13
explain his or her actions before being held ineffective. Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003). We need not determine whether trial
counsel’s performance was deficient, however, because the trial court could
reasonably have found that appellant was not prejudiced by the failure to provide
further evidence of his residence during part of the time period in which he was
accused of committing sexual offenses against the complainant.

       At trial, appellant himself testified concerning the dates that he lived in
Austin, and the State did not introduce any evidence to contradict those statements.
Likewise, appellant’s wife testified during trial that appellant lived in Dallas during
2010. Whether appellant lived “off and on” in Austin was never a disputed issue
in this case. Moreover, the additional evidence appellant faults trial counsel for not
offering would not have provided an alibi for the entire time period during which
he was accused of committing the sexual abuse—between September 1, 2007 and
October 8, 2010. Because the trial court could reasonably have found that it was
not reasonably likely the result of the proceeding would have been different had
trial counsel provided additional evidence or witnesses to show appellant lived in
Austin periodically for several years, the trial court did not abuse its discretion by
denying appellant’s motion for new trial. We overrule appellant’s fourth issue.

                                       CONCLUSION

      Having overruled each of appellant’s issues on appeal, we affirm the trial
court’s judgment.


                                 /s/     J. Brett Busby
                                         Justice

Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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