                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-192-CR


MARK SCHWARZER                                                      APPELLANT

                                             V.

THE STATE OF TEXAS                                                       STATE

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           FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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     Appellant Mark Schwarzer appeals from his conviction for two counts of

aggravated sexual assault.       In six points, he argues that his trial counsel

rendered ineffective assistance. We affirm.




     1
         … See T EX. R. A PP. P. 47.4.
                                  Background

      The complainant in this case is B.K., a twelve-year-old girl. B.K.’s mother

began dating Appellant in 2000 or 2001. B.K. testified that in 2005 Appellant

inserted his fingers into her vagina while they were in a hot tub. She said he

did the same thing later that month while she was watching television in her

mother’s bed. B.K. testified that the next day, Appellant asked her, “Well,

what do you think about what I did yesterday in the bed?”; she replied, “I don’t

ever want you to touch me like that again,” and Appellant said “okay.”

      In March 2006, B.K. told two friends what Appellant had done to her the

previous summer. Her friend urged her to tell B.K.’s mother, and B.K. did so.

B.K. repeated her outcry to her counselor, a CPS worker, and a sexual assault

nurse examiner.

      Police Detective Robert Dillman testified that he interviewed Appellant;

the interview was noncustodial and videotaped. During the interview, Appellant

conceded that it was possible that he had touched B.K.’s genitals and said, “I’m

not going to deny it. I can’t deny it because I don’t think she would lie.” He

said that he felt horrible and that he would pay for counseling for B.K. The

videotape was played for the jury at trial.

      At trial, Appellant denied having inserted his fingers into B.K.’s vagina,

but he testified that he might have touched B.K.’s genitals accidentally.

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      A jury convicted Appellant for two counts of aggravated sexual assault

and assessed punishment of eight years’ confinement for each count. The trial

court rendered judgment accordingly, and this appeal followed.

                              Standard of Review

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence (1) that his counsel’s representation fell below

the standard of prevailing professional norms and (2) that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      When evaluating the effectiveness of counsel under the first Strickland

prong, we look to the totality of the representation and the particular

circumstances of each case.      Thompson, 9 S.W.3d at 813.         The issue is

whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation

is highly deferential, and the reviewing court indulges a strong presumption that




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counsel’s conduct fell within a wide range of reasonable representation.

Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In

other words, appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.   Id. at 694, 104 S. Ct. at 2068.     A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.

      A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. “In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.”

Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome

the presumption of reasonable professional assistance, “any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson,

9 S.W .3d at 813). It is not appropriate for an appellate court to simply infer

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ineffective assistance based upon unclear portions of the record.        Mata v.

State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      There is no requirement that we approach the two-pronged inquiry of

Strickland in any particular order, or even address both components of the

inquiry if the defendant makes an insufficient showing on one component. Id.

at 697, 104 S. Ct. at 2069.

                                   Discussion

A.    The State’s opening argument; testimony of examining nurse.

      In his first point, Appellant argues that trial counsel rendered ineffective

assistance by failing to make a hearsay objection during the State’s opening

argument when the prosecutor said, “[H]e approaches her and says, what do

you think about what I did? Her response is, don’t ever do that again. And he

says okay.”; “[The CPS worker] is going to testify about that interview and

about statements made by [B.K.] during that interview.”; and “[The sexual

assault nurse examiner]’s going to testify about talking to [B.K.], and she’s

going to testify that [B.K.] told her the same thing.”      In his second point,

Appellant argues that counsel rendered ineffective assistance by failing to

object to the examining nurse’s actual testimony presented later at trial.

      In the State’s opening statement, “[t]he State’s attorney shall state to the

jury the nature of the accusations and the facts which are expected to be

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proved by the State in support thereof.”      T EX. C ODE C RIM. P ROC. A NN. art.

36.01(a)(1) (Vernon 2007). A preliminary statement of what the State expects

to prove is proper. Marini v. State, 593 S.W.2d 709, 715 (Tex. Crim. App.

1980).   If evidence is admissible at trial, the prosecutor does not err in

referencing the evidence during the opening statement. Parra v. State, 935

S.W.2d 862, 871 (Tex. App.—Texarkana 1996, pet. ref’d).

      Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted. T EX. R. E VID. 801(d). Hearsay is not admissible except as

provided by statute or by the Texas Rules of Evidence. T EX. R. E VID. 802.

      The prosecutor’s complained-of sentences fall into three categories. First

is Appellant’s out-of-court statement. Appellant’s statement is not hearsay

because it is a statement by a party-opponent. See T EX. R. E VID. 801(e)(2)

(excluding statements by party-opponent from the definition of hearsay).

      Second is the prosecutor’s statement that the CPS worker would tell the

jury what B.K. said. The prosecutor’s statement contained no hearsay because

it did not disclose to the jury any out-of-court statement; the prosecutor merely

identified the subject about which the CPS worker would testify. See T EX. R.

E VID. 801.

      Third is the prosecutor’s statement that the nurse examiner would testify

that B.K. “told her the same thing,” i.e., that B.K. explained to the nurse the

                                       6
same details about the assault that she had told to her mother. This statement

segues into Appellant’s second point, in which he complains that counsel failed

to object when the examining nurse actually testified.

      Rule of evidence 803(4) creates an exception to the hearsay rule for

statements made for the purpose of medical diagnosis or treatment. T EX. R.

E VID. 803(4). The examining nurse testified that prior to examining B.K. she

asked B.K. the reason for the exam as part of her medical diagnosis and

treatment. She testified that B.K. responded that Appellant inserted his fingers

into her vagina on two separate occasions. Because B.K. made the statement

in question for the purpose of medical diagnosis and treatment, it is not

hearsay. See id.; Todd v. State, No. 06-05-00149-CR, 2007 WL 148826, at

*2 (Tex. App.—Texarkana Jan. 23, 2007, pet. ref’d) (mem. op., not designated

for publication) (holding counsel not ineffective for failing to object to

complainant’s out of court statement regarding sexual abuse made to examining

nurse and collecting similar cases).

      Because the prosecutor’s opening statement and the examining nurse’s

testimony did not involve hearsay, Appellant’s counsel was not ineffective for

failing to make hearsay objections to them; the failure to object to admissible

evidence does not constitute ineffective representation. Ex parte White, 160




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S.W.3d 46, 53 (Tex. Crim. App. 2004). We overrule Appellant’s first two points.

B.    Detective Dillman’s testimony.

      In his third point, Appellant argues that counsel rendered ineffective

assistance by failing to object to the hearsay testimony and improper bolstering

testimony of Detective Dillman. Appellant does not identify which parts of

Detective Dillman’s testimony constituted hearsay.         With regard to his

bolstering claim, he points to specific testimony, but he offers no argument or

citation to any authority whatsoever.      Argument in an appellate brief must

contain appropriate citations to authorities and to the record. T EX. R. A PP. P.

38.1(h). We therefore overrule Appellant’s third point for inadequate briefing.

C.    Failure to request a Jackson v. Denno hearing

      In his fourth point, Appellant argues that counsel was ineffective by

failing to request a Jackson v. Denno 2 hearing to determine the voluntariness

of his confession.

      A defendant has a right to object to the use of a confession and the right

to a hearing to determine whether the confession was voluntary. Id. The sole

issue in such a hearing is whether the confession was coerced. Pierce v. State,

32 S.W.3d 247, 252 (Tex. Crim. App. 2000). The statement of an accused

may be used in evidence if it was freely and voluntarily made without


      2
          … 378 U.S. 368, 377, 84 S. Ct. 1774, 1781 (1964).

                                       8
compulsion or persuasion.      T EX. C ODE C RIM. P ROC. A NN. art. 38.21 (Vernon

2005). A confession is involuntary if circumstances show that the defendant’s

will was “overborne” by police coercion. Creager v. State, 952 S.W.2d 852,

856 (Tex. Crim. App. 1997). In other words, a statement is involuntary if the

record reflects “official, coercive conduct of such a nature” that any statement

obtained thereby is “unlikely to have been the product of an essentially free and

unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211

(Tex. Crim. App. 1995).        The determination of whether a confession is

voluntary is based on an examination of the totality of the circumstances

surrounding its acquisition.     Reed v. State, 59 S.W.3d 278, 281 (Tex.

App.—Fort Worth 2001, pet. ref’d).

      Appellant does not explain how his confession was involuntary or point

to any evidence that tends to show that his will was overborne by police

coercion. We have reviewed the videotape of the confession. At the beginning

of the interview, Detective Dillman explained to Appellant that he was not in

custody and that he was free to leave at any time, and he told Appellant how

to leave the interview room and the building. At no time during the interview

did Appellant attempt to leave the room or express a desire to terminate the

interview. To the contrary, it appears that Appellant voluntarily extended the




                                        9
interview and offered additional information more than once when Detective

Dillman was attempting to wind down the interview.

      Because there is no indication in the record that Appellant’s confession

was involuntary, Appellant has not shown a reasonable probability that, but for

counsel’s failure to request a Jackson v. Denno hearing, the result of the

proceeding would have been different.       Thus, he has failed to satisfy the

second prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. Therefore, we overrule his fourth point.

D.    Video of B.K.’s CPS interview.

      In his fifth point, Appellant argues that counsel rendered ineffective

assistance when he failed to object to the admission into evidence of a DVD

video recording of B.K.’s interview with a CPS worker.        Appellant’s entire

argument on this point (excluding a boilerplate recitation of ineffective-

assistance law, which he repeats in each of his points) reads, “Appellant’s trial

attorney provided ineffective assistance of counsel by failing to object to the

introduction of State’s exhibit No. 5, a prejudicial DVD of the victim’s police

[sic] interview. [Record reference omitted] The Appellant was not provided with

a fair trial as guaranteed by the Sixth Amendment.”

      Appellant’s cursory argument satisfies neither prong of the Strickland

test. The record is silent as to counsel’s possible strategy in not objecting to

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the video.   One possible strategy was to allow the jury to assess B.K.’s

credibility and demeanor during the CPS interview. Thus, indulging a strong

presumption that counsel’s conduct fell within a wide range of reasonable

representation, see Salinas, 163 S.W.3d at 740, the record does not show that

counsel’s failure to object to the video was unreasonable under all the

circumstances and prevailing professional norms. See Strickland, 466 U.S. at

688–89, 104 S. Ct. at 2065. Thus, Appellant has not satisfied the first prong

of Strickland.

      Nor has Appellant satisfied the second Strickland prong by showing that

there is a reasonable probability that, but for counsel’s failure to object, the

result of the proceeding would have been different or even that the trial court

would or should have excluded the video. See id. at 694, 104 S. Ct. at 2068.

That evidence is “prejudicial”—the only objection to the video suggested by

Appellant’s argument—is, by itself, not a valid objection. See T EX. R. E VID. 403

(“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice . . . .”). In a criminal

prosecution, one may expect that all of the evidence offered by the State will

be prejudicial to the defense.     Thus, a trial objection that the video was

“prejudicial” would not, in reasonable probability, have resulted in the exclusion

of the video or a different result at trial. Moreover, even if the trial court had

                                        11
excluded the video on a timely objection, the same substantive evidence—that

Appellant inserted his fingers into B.K.’s vagina—was offered through several

other witnesses, including B.K. herself, making it unlikely that the exclusion of

the video would have resulted in a different verdict.

      We overrule Appellant’s fifth point.

E.    The State’s closing argument.

      In his sixth point, Appellant argues that counsel rendered ineffective

assistance by failing to object to hearsay in the State’s closing argument. The

prosecutor’s statement in question is as follows:

      They want to say [B.K.]’s a liar. If she is, you have to think that
      she’s bold enough and vindictive enough to, number one, tell it to
      her friend; tell the same lie, number two, to her mother; number
      three, tell the same consistent lie to her counselor; number four,
      tell the same consistent lie to a SANE nurse . . . .

      Proper jury argument includes (1) summation of the evidence, (2)

reasonable deductions from the evidence, (3) answer to the argument of

opposing counsel, and (4) pleas for law enforcement. Alejandro v. State, 493

S.W.2d 230, 231–32 (Tex. Crim. App. 1973).           The quoted portion of the

argument was both a summation of the evidence and an answer to the

argument of defense counsel, who argued that B.K. fabricated her allegations.

The trial court admitted without objection testimony that B.K. had made similar

or identical statements regarding the sexual assaults to her friend, her mother,

                                       12
her counselor, and the nurse examiner; thus, the prosecutor’s argument merely

summarized what was already before the jury. Therefore, it is unlikely that the

trial court would sustain a hearsay objection to the State’s argument, and even

less likely that the objection would have resulted in a different verdict.

Appellant has failed to establish the second prong of Strickland, 466 U.S. at

694, 104 S. Ct. at 2068, and we overrule his sixth point.

                                 Conclusion

      Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.




                                           ANNE GARDNER
                                           JUSTICE

PANEL B:     LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 12, 2008




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