Affirmed and Majority and Concurring Memorandum Opinions filed March
12, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00902-CR

                    DOUGLAS HARRY YOUNG, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 212th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 16CR2784

                   MAJORITY MEMORANDUM OPINION

      We consider two issues in this appeal from a conviction for aggravated sexual
assault of a disabled individual: (1) whether appellant was denied the effective
assistance of trial counsel, and (2) whether two statutes are unconstitutional. For
reasons explained more fully below, we conclude that the first issue is without merit,
and that the second issue is not preserved. We therefore affirm the trial court’s
judgment.
                                 BACKGROUND

      The complainant in this case is thirty-three years of age, but due to a severe
disability, she has the mind of a five-year-old. She graduated from high school under
a special education program, but she cannot read. She can barely write, and even
then, her writing capability is limited to just a “scribble scratch” of her name and
words she has been asked to copy.

      The complainant lives with her younger sister and her family, who have to
constantly watch over the complainant to protect her from herself. The complainant
has burned herself in the bathtub because she does not know how to regulate the
water temperature. She has mistaken a pain relief cream for toothpaste. And she has
been known to answer the door for anyone, without appreciating the risk of “stranger
danger.”

      The complainant had a close personal relationship with appellant, her
stepfather, with whom she maintained regular contacts even after the death of her
mother. The complainant would visit appellant on the weekends, and they would
play darts and watch baseball together.

      After one weekend visit, the complainant returned home to her sister
appearing red, flustered, and smelling of alcohol. The complainant told her sister
that she had consumed two bottles of wine. The sister was upset because alcohol
interfered with the complainant’s seizure medication. The complainant “shut down”
during this conversation and then abruptly changed the subject, telling her sister that
appellant had touched and kissed her vagina. Later, the complainant told her sister’s
husband that appellant’s private parts were around her private parts. The sister and
her husband reported the incident to police.




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      Appellant gave a voluntary, pre-arrest statement to police, in which he
admitted that he had been having sex with the complainant for more than a year. He
said that he never forced himself upon the complainant, and that she was always a
willing participant. Despite being aware of the complainant’s mental handicaps,
appellant opined that the complainant was capable of determining for herself
whether having sex was right or wrong. He also said that he had “strong feelings”
for the complainant, and that he had contemplated marrying her.

      Appellant did not testify during the guilt phase of his trial, but his pre-arrest
statement was admitted into evidence for the jury’s consideration. His defensive
theory was that no crime had been committed because the sexual relationship was
consensual.

      The complainant’s sister responded that the relationship could not have been
consensual because the complainant was incapable of understanding sex. The sister
testified that the complainant “probably thought sex was kissing.” The sister also
added that the complainant does not understand that sex can result in pregnancy:
“She thinks that people go to the store to have babies put in the belly.”

      The jury rejected appellant’s defensive theory and convicted him as charged.
Appellant filed a motion for new trial, but only on the bare grounds that “the verdict
in this cause is contrary to the law and the evidence.” That motion was overruled by
operation of law.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

      Now on appeal, appellant asserts two claims of ineffective assistance of
counsel. The first claim relates to the outcry testimony from the complainant’s sister
and her husband. The State gave notice that it intended to call both witnesses as
outcry witnesses because the complainant allegedly made different outcry


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statements to each of them. Appellant counters that the outcry statements concerned
the same event, and that the husband should not have been allowed to testify because
he was not the first person in whom the complainant had confided. See Tex. Code
Crim. Proc. art. 38.072, § 2(a)(3) (providing that only the first person can be the
outcry witness). Appellant accordingly believes that his trial counsel was ineffective
because counsel did not object to the husband’s cumulative outcry testimony.

      To prevail on his claim of ineffectiveness, appellant had the burden of proving
that his counsel’s performance was deficient, and that the deficient performance was
so prejudicial that it deprived him of a fair trial. See Strickland v. Washington, 466
U.S. 668, 687 (1984). When assessing counsel’s performance, we look at the totality
of the representation and to the circumstances of the case, not to isolated instances
in the record reflecting errors of commission or omission. See Robertson v. State,
187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We will only conclude that counsel’s
performance was deficient if it fell below an objective standard of reasonableness.
See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). This is not a
low threshold. Our review of counsel’s performance is highly deferential, beginning
with the strong presumption that counsel’s decisions were reasonably professional
and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994). Thus, any allegation of ineffectiveness must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      The record here shows that counsel made a deliberate decision to waive any
challenge to the husband’s outcry testimony. When the State attempted to schedule
a hearing to determine the admissibility of that testimony, counsel explained his
waiver as follows: “I don’t necessarily want to have a hearing on that. [Appellant]
and I have talked to what our strategy is. That doesn’t play into our defense.”

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       Appellant’s defense was that his sexual relationship was consensual, not that
it never existed. The husband’s outcry testimony did not negate appellant’s theory
about consent. The husband’s outcry testimony merely provided additional proof
that the sexual relationship actually existed. Because the husband’s outcry testimony
did not negate appellant’s defensive theory, counsel could have reasonably
concluded that there was no advantage to be gained by challenging it.

       And even if counsel had successfully challenged the husband’s outcry
testimony, the same evidence about the existence of the sexual relationship would
have been admitted through appellant’s own pre-arrest statements to police. Thus,
appellant cannot show that he was prejudiced by counsel’s decision not to object.

       The next claim of ineffectiveness focuses on opinion testimony from the sister
and her husband, both of whom opined that the complainant was incapable of
consenting to a sexual relationship. Appellant contends that counsel should have
objected to this testimony because neither witness was an expert.

       The record does not reveal counsel’s reasons for failing to object to the
opinion testimony. Because the record is silent regarding counsel’s omissions, we
must adhere to the presumption that counsel was motivated by sound trial strategy.1
See Mallett v. State, 65 S.W.3d 59, 67 (Tex. Crim. App. 2001). We therefore
conclude that appellant failed to show that counsel’s performance was deficient.




       1
         We note that appellant opined in his pre-arrest statement that the complainant was capable
of consenting to a sexual relationship. Counsel may have reasonably concluded that if appellant
could opine on this subject despite being just a layperson, then the sister and her husband could
form the opposite opinion that the complainant was incapable of consenting to a sexual
relationship. See Tex. R. Evid. 701 (governing the admissibility of opinion testimony).

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                          STATUTORY CHALLENGES

      In his next issue, appellant challenges the constitutionality of two different
statutes. The first statute is Article 38.072 of the Texas Code of Criminal Procedure,
which provides a hearsay exception for certain types of outcry statements. Appellant
contends that this statute is unconstitutional because it is overly broad and vague.

      The second statute is Section 22.021 of the Texas Penal Code, which creates
an offense for the aggravated sexual assault of a disabled individual. Appellant
contends that this statute is unconstitutional because it “does not allow for there ever
to be a circumstance where a disabled person can consent to sex.”

      The State urges us to dispose of both complaints without reaching the merits
because appellant failed to preserve error and because the complaints are
inadequately briefed. We agree with the preservation point. Appellant did not
challenge these statutes at any point in the trial court, either on facial or as-applied
grounds. Therefore, he cannot raise these challenges for the first time on appeal. See
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial challenges
must be preserved in the trial court); Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex.
Crim. App. 2008) (as-applied challenges must be preserved in the trial court).

                RESPONSE TO THE CONCURRING OPINION

      The concurring opinion is premised on a misunderstanding of our civil and
criminal laws. The concurring opinion begins by referring to a civil statute, which
provides that an intellectually disabled person has the right to the presumption of
competency. See Tex. Health & Safety Code § 592.021. The concurring opinion then
uses this statute to advance an argument that the complainant in this case has been
deprived of her fundamental right to engage in sexual relations because the
complainant appeared before a jury as a witness, not as a party, and the jury


                                           6
determined, without prior notice, that the complainant was incompetent to have sex.
The concurring opinion regards this determination as “constitutionally troubling.”
We do not share that view.

      The presumption of competency exists as part of a broader statutory scheme
of protecting “persons with intellectual disabilities.” Id. § 592.012 (“Each person
with an intellectual disability has the right to protection from exploitation and abuse
because of the person’s intellectual disability.”). The criminal statute under which
appellant was charged and convicted is consistent with that scheme because it
criminalizes sexual assaults against “disabled individuals.”

      The criminal statute defines a “disabled individual” as “a person older than 13
years of age who by reason of age or physical or mental disease, defect, or injury is
substantially unable to protect the person’s self from harm or to provide food,
shelter, or medical care for the person’s self.” See Tex. Penal Code § 22.021(b)(3).
This criminal definition could also (though it may not always) cover a “person with
an intellectual disability,” which is defined under the civil statute as “a person
determined by a physician or psychologist licensed in this state or certified by the
department to have subaverage general intellectual functioning with deficits in
adaptive behavior.” See Tex. Health & Safety Code § 591.003(15-a). There is no age
restriction under the civil definition, and a person with an intellectual disability may
still be able to protect herself from harm, find her own employment, or provide for
her own food and housing. Id. at § 592.015 (providing protection from employment
discrimination); id. at § 592.016 (providing protection from housing discrimination).

      The State proved that the complainant qualified as a disabled individual. The
evidence showed that the complainant cannot prepare her own meals. She cannot
regulate the water temperature when taking a bath. She cannot protect herself from
strangers. She cannot read, or write, or work.

                                           7
      Though it had no such burden, the State also proved that the complainant
qualified as a person with an intellectual disability. A psychologist directly testified
that the complainant demonstrated “significantly subaverage general intellectual
functioning concurrent with deficits in adaptive behavior.”

      Under the criminal statute, the State was required to prove that the sexual
assault occurred without the consent of the complainant. The jury was charged that
the sex was nonconsensual if appellant knew that the complainant “as a result of
mental disease or defect [was] at the time of the sexual assault incapable either of
appraising the nature of the act or of resisting it.” See Tex. Penal Code
§§ 22.011(b)(4), 22.021(c). If the evidence showed that the complainant was
incapable of appraising the nature of the sexual act, then the State necessarily
rebutted the complainant’s presumption that she was competent to engage in sex.

      Here too, the State satisfied its burden of proving that the complainant did not
consent because she was incompetent. The sister testified that the complainant did
not understand sex or its consequences. The complainant similarly testified that she
did not know how babies were made. The complainant even asserted that girls have
penises. Defense counsel did not cross-examine the complainant or otherwise try to
elicit any testimony from her that she had the capacity to engage in sex.

      The concurring opinion appears to be troubled by the jury’s implied finding
that the complainant is incompetent because the evidence showed that the
complainant was never involved in a guardianship proceeding before the offense
occurred. But a guardianship is not an element of the offense—and for good reason.
Guardianships are expensive and in many cases unnecessary. People who care for
disabled relatives at home should not have to initiate such proceedings in order to
protect the disabled from sexual predators.



                                           8
      Our laws ensure that the class of persons who are most vulnerable to sexual
assault are in fact protected from sexual assault. We do not agree with the concurring
opinion that our laws run the danger of infringing the fundamental rights of this
vulnerable class.

                                  CONCLUSION

      The trial court’s judgment is affirmed.




                                       /s/       Tracy Christopher
                                                 Justice


Panel consists of Justices Christopher, Jewell, and Hassan. (Hassan, J., concurring).
Do Not Publish — Tex. R. App. P. 47.2(b).




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