Opinion issued June 17, 2014




                                      In The
                               Court of Appeals
                                      For The
                          First District of Texas
                          ————————————
                            NO. 01-13-00770-CR
                          ———————————
                         DERRICK JAMES, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Case No. 1357012


                          MEMORANDUM OPINION
      After waiving his right to a jury trial, the trial court found Appellant guilty

of the offense of indecency with a child. 1 The trial court sentenced Appellant to 20

years in prison. In two issues, Appellant asserts he received ineffective assistance



1
      See TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011).
of counsel at trial, and he complains that his sentence is excessive and grossly

disproportionate, given the evidence in the case.

      We affirm.

                                   Background

      Appellant and Valerie were married and lived with Valerie’s children,

including Valerie’s 10-year-old daughter, T.B. One day, when T.B. was lying on

her bed watching television, Appellant entered her bedroom and started touching

what was later established at trial to be T.B.’s genitals through her clothing. T.B.

told Appellant to stop, but he told her, “No.” T.B. did not tell anyone about the

incident because she was afraid of what Appellant might do.

      A second incident occurred when T.B. was asleep one night. Appellant

came into her bedroom and began touching her genitals through her pajama

bottoms. T.B. told Appellant to stop, and he told her to “be quiet.” Appellant left

the room but then returned and continued to touch T.B.’s genitals through her

clothing. T.B. did not tell anyone about the second incident. On another date,

Appellant asked T.B. to touch what she later described as his “private” area.

      On August 6, 2012, when T.B.’s mother, Valerie, was not at home,

Appellant was watching the children. T.B. told Appellant that she had a headache.

Appellant told her to go lie on her mother’s bed. T.B. lay down on her mother’s

bed and fell asleep. Appellant came into the room while T.B. was asleep. T.B.



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woke up when she heard Appellant closing and locking the bedroom door behind

him. Appellant came over to the bed and lay next to T.B. Appellant then began

touching her genitals through her clothes.

      While this was occurring, T.B.’s mother, Valerie, came home. Valerie used

her key to unlock the bedroom door.           When she opened the door, she saw

Appellant jump up from the bed where T.B. was lying. Appellant said to Valerie,

“We ain’t doing anything.”

      Valerie told T.B. to come with her. Valerie took T.B. directly to the home

of Valerie’s mother. Valerie and the grandmother asked T.B. what had occurred.

T.B. told them that Appellant had been “rubbing on her.” Valerie asked T.B.

where Appellant had rubbed her, and T.B. pointed to her vaginal area.

      The grandmother called the police. A female officer was dispatched, who

spoke with Valerie and T.B. The officer instructed Valerie to take T.B. to Texas

Children’s Hospital for an examination.

      Later that day, T.B. met with a nurse, M. Jenkins, at the hospital to perform

a medical exam. T.B. indicated to Jenkins that Appellant had touched her vaginal

area over her clothing. Because there had been no skin to skin contact, Jenkins did

not conduct a genital exam.

      Two days later, Valerie took T.B. to the Children’s Assessment Center.

There, T.B. spoke with forensic interviewer, T. Rogers.



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         Appellant was charged by indictment with the offense of indecency with a

child.     Specifically, the indictment alleged that Appellant had “unlawfully

engage[d] in sexual contact with [T.B.], a person younger than seventeen years of

age and not [his] spouse . . ., by touching through clothing the genitals of [T.B.]

with the intent to arouse and gratify [his] sexual desire . . . .”

         Appellant waived his right to a trial by jury, and the case was tried to the

bench. The State presented the following witnesses during the guilt-innocence

portion of trial: T.B., Valerie, the responding police officer, the nurse who had

examined T.B., and the forensic interviewer from the Children’s Assessment

Center, T. Rogers. After these witnesses testified, the trial court found Appellant

guilty of the offense of indecency with a child.

         At the beginning of the punishment hearing, Appellant stipulated that he had

previously been convicted of two other offenses: (1) tampering with a witness and

(2) abandoning or endangering a child. During the punishment phase, the State

called several witnesses to testify. One of those witnesses was D.T.

         At the time of trial, D.T. was 18 years old and had just started college. She

testified that, in 2005, when she was 10 years old, Appellant had been her mother’s

boyfriend. During that time, he had lived with her family.

         In her testimony, D.T. described an incident involving Appellant, which

occurred in 2005. She stated that, early one morning, while she was still in bed,



                                            4
Appellant came into her room and knelt by her bed. He placed his hand under the

covers and began touching her body through her clothes. He ran his hand from her

chest down to her vaginal area. D.T. testified that, despite telling her mother about

the incident, Appellant came into her room and touched her vaginal area another

four or five times before the authorities were contacted. 2

      The State also offered the testimony of N.P., Valerie’s friend. N.P. and her

son had lived with Appellant and Valerie in 2012. She testified that, while asleep

on the couch, Appellant had touched her vaginal area through her pants. N.P.

testified that this occurred on two more occasions when she awoke to find

Appellant “stroking” her vaginal area though her clothes.            N.P.’s testimony

indicated that the police were called related to two of these incidents, but charges

were never brought against Appellant.

      In addition, the State presented the testimony of J.T. She and Valerie’s

brother have two children together.

      J.T. testified that she would, on occasion, stay overnight at Valerie’s and

Appellant’s home. She testified regarding an incident that had occurred in 2008


2
      Although no evidence was offered to show this, a discussion by the attorneys on
      the record, and statements made by defense counsel during closing argument,
      reflect that D.T. was the complainant with respect to the abandoning-or-
      endangering-a-child offense to which Appellant stipulated. The discussions
      indicate that Appellant was originally charged with indecency with a child but the
      charge was reduced to state jail felony child endangerment when Appellant
      pleaded guilty to the endangerment offense.

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when she had spent the night at their home. It was in the morning, and Valerie had

already gone to work. Appellant and the children were at home. J.T. was in bed

when Appellant entered her room. Appellant told J.T. to “scoot over” in the bed.

When she refused, Appellant pulled out a handgun and demanded that J.T. take off

her clothes. J.T. complied. She testified that Appellant put on a condom and

“forced his penis into her vagina.” After he ejaculated, Appellant took J.T.’s

clothes, and along with the condom, threw them in a trash can outside the home.

       J.T. testified that Appellant threatened to kill Valerie, Valerie’s brother, and

Valerie’s mother if J.T. told anyone about what he had done. J.T. stated that she

remained silent but, after some time, called the police to report the incident. Her

testimony indicates that charges were not filed against Appellant.

       At the conclusion of the punishment hearing, the trial court sentenced

Appellant to 20 years in prison. Appellant did not file a motion for new trial.

       Appellant now appeals, raising two issues.

                             Ineffective Assistance of Counsel

       In his first issue, appellant contends that he received ineffective assistance of

counsel at trial.

A.     Applicable Legal Principles

       To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of



                                           6
reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,

the result would have been different. See Strickland v. Washington, 466 U.S. 668,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d

98, 101 (Tex. Crim. App. 2005). The first Strickland prong requires appellant to

overcome the strong presumption that counsel’s performance falls within a wide

range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. The

second Strickland prong requires appellant to show that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.    See id. at 102.    A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome. See id.

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

evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). A

failure to show either (1) deficient performance or (2) sufficient prejudice defeats

the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009); Carballo v. State, 303 S.W.3d 742, 750 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d).

B.    Analysis

      1.     Objecting to Forensic Interviewer’s Testimony

      Appellant asserts that defense counsel’s performance at trial was deficient

because counsel did not object to an improper expert opinion regarding T.B.’s



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truthfulness and credibility given by T. Rogers, the forensic interviewer at the

Children’s Assessment Center. Specifically, Appellant claims that counsel should

have objected to the following italicized portion of Rogers’ testimony:

         Q. Okay. Did you ask any questions during the course of that
         interview to test [T.B.’s] consistency with her version of events?

         A. Well, using the open-ended questions allowed her to narrate
         different incidences. She was able to describe two to three. She was
         able to describe specific details and what was said and what was not
         said, who walked in. So, she provided very specific details that didn't
         appear rote. She was able to narrate. It didn’t appear that it was
         something that she had memorized.

         Q. The fact that she was able to narrate to you, what did that signify to
         you?

         A. Of course, as an interviewer, I don’t give an opinion; but perhaps
         the validity that maybe something happened.

(Emphasis added).

      Even if we presume he has satisfied the first Strickland prong, Appellant

does not meet his burden under the second Strickland prong. More precisely,

Appellant has not shown that there is a reasonable probability that the result of the

proceeding would have been different had counsel objected to the complained-of

testimony.

      At trial, T.B. testified regarding the details of each incident in which

Appellant had touched her genitals through her clothing. Through questioning, it

was shown that T.B. knew the difference between a lie and the truth. Using a doll,



                                         8
T.B. showed anatomically where Appellant had touched her; she identified her

genital area.   T.B. also demonstrated, using the doll, the manner in which

Appellant had touched her.

      Valerie testified that she came home to find the bedroom door locked. She

stated that she used her key to unlock the door. When she opened it, she saw

Appellant jump off the bed. She also saw T.B. lying on the bed. Valerie testified

that Appellant then exclaimed, “We ain’t doing anything.”          Recognizing the

inappropriateness of the situation, Valerie immediately took T.B. to her mother’s

home. Once there, T.B. told Valerie and her grandmother that Appellant had been

rubbing her vaginal area. Valerie’s testimony regarding what T.B. reported to her

was consistent with T.B.’s testimony at trial regarding Appellant’s past actions.

      The trial court also heard the testimony of the nurse from Texas Children’s

Hospital, M. Jenkins. She testified that T.B. told her that T.B.’s stepfather had

touched her in her vaginal area over her clothes.

      T.B.’s medical records from the hospital visit were also admitted into

evidence. The records reflect that T.B. had reported during the examination that

Appellant had touched her vaginal area through her clothes. The records indicate

that T.B. stated there had been other times Appellant had touched her and that the

touching had started earlier that summer.




                                            9
      In contrast, forensic interviewer Rogers did not relate the details of what

T.B. had told her during the interview. Rogers testified about the techniques she

uses when interviewing children and that she used these techniques when

interviewing T.B. She also testified about T.B.’s demeanor during the interview.

Rogers stated that T.B. was able to describe specific details to her and noted that

T.B. was able to provide a narrative regarding the events. She stated that T.B.’s

answers did not appear rote.

      Given the evidence, we conclude Appellant has not shown that there is a

reasonable probability that but for his counsel’s alleged deficient performance of

failing to object to Roger’s testimony, the outcome of the proceeding would have

been different. See Andrews, 159 S.W.3d at 102. Thus, Appellant has failed to

satisfy the second Strickland prong.

      2.    Failure to Object to N.P.’s Punishment Testimony

      Appellant also complains that his counsel was ineffective during the

punishment phase. Appellant points to testimony by N.P. in which she responded

to a question on cross-examination regarding whether she returned to stay at

Valerie’s and Appellant’s home after she had an altercation with Appellant

precipitated by him touching her vaginal area over her clothing. N.P. responded

that she did stay at their home again; however, she added that Valerie’s mother did




                                        10
not want her to return to the home “because [Valerie’s mother] claimed that

[Appellant] was the devil.”

      Appellant’s counsel did not object to N.P.’s statement that Valerie’s mother

claimed that Appellant was “the devil.” On appeal, Appellant asserts that defense

counsel should have objected to this portion of N.P.’s testimony because it was

“non-responsive, irrelevant, and highly prejudicial.”

      Presuming N.P.’s defense counsel should have objected to N.P.’s testimony,

Appellant must nonetheless establish the second Strickland prong to meet his

burden on his ineffective-assistance-of-counsel claim. As stated, to succeed on the

second Strickland prong, an appellant must show a reasonable probability that the

result of the proceeding would have been different but for counsel’s ineffective

assistance, i.e., a probability “sufficient to undermine confidence in the outcome.”

See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “An appellate court will not

reverse a conviction for ineffective assistance of counsel at the punishment stage

unless the appellant shows prejudice as a result of deficient attorney performance.”

Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d). “To assess prejudice, ‘we reweigh the evidence in aggravation against the

totality of available mitigating evidence’ as indicated by the record as a whole.”

Id. (quoting Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 2542 (2003)).




                                         11
          Appellant asserts, “Hearing that his own family members thought he was the

devil was undoubtedly extremely damaging. There is more than a reasonable

probability that [Appellant’s] sentence could have been lower had the court not

heard that portion of [N.P.’s] testimony.”

          Appellant correctly points out that his 20-year sentence is the maximum

prison sentence he could receive for the second-degree felony offense of indecency

with a child. See TEX. PENAL CODE ANN. § 21.11(d) (Vernon 2011); see also TEX.

PENAL CODE ANN. § 12.33(a) (Vernon 2011). However, the evidence heard by the

trial court was more than adequate to support Appellant’s 20-year-sentence.

          The trial court heard from three witnesses who each testified that Appellant

had also committed sexual offenses against her in the last 10 years. Two of the

witnesses, N.P. and D.H., each testified that Appellant had rubbed her vaginal area

through her clothing. The witnesses’ description of Appellant’s conduct sounded

nearly identical to what T.B. described in this case. In addition, like T.B., D.H.

had been only 10 years old when Appellant touched her vaginal area through her

clothing.

          The trial court also heard the testimony of J.T., who testified that Appellant

had forced her to have sexual intercourse with him at gunpoint in 2008. D.H. and

J.T. also each testified about the psychological effects of what Appellant had done

to her.



                                            12
      Although the trial court imposed the maximum prison sentence, Appellant

fails to demonstrate a reasonable probability—that is, a probability sufficient to

undermine confidence in the outcome—that the trial court would have imposed a

lesser sentence had his defense counsel objected to N.P.’s testimony that Valerie’s

mother thought Appellant was “the devil.” We conclude that Appellant has not

satisfied the second Strickland prong in this regard.

      We hold that appellant has failed to show, by a preponderance of the

evidence, that he received ineffective assistance of counsel at trial. See Strickland,

466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068. Accordingly, we overrule

Appellant’s first issue.

                             Cruel and Unusual Punishment

      In his second issue, Appellant claims his sentence was excessive and grossly

disproportionate to the offense underlying the conviction, resulting in cruel and

unusual punishment in violation of the United States and Texas constitutions. See

U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. To preserve for appellate

review a complaint that a sentence is grossly disproportionate, constituting cruel

and unusual punishment, a defendant must present to the trial court a timely

request, objection, or motion stating the specific grounds for the ruling desired.

See TEX. R. APP. P. 33.1(a); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex.

Crim. App. 1996) (holding that defendant waived any error regarding violation of



                                         13
state constitutional right against cruel and unusual punishment because argument

was presented for first time on appeal); Gavin v. State, 404 S.W.3d 597, 602 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (holding appellant’s complaint that his

20-year-sentence for offense of indecency with a child constituted cruel and

unusual punishment was waived because it was not asserted in the trial court);

Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d) (holding appellant’s assertion that sentence was grossly disproportionate

was waived because complaint not raised by objection in trial court or by motion

for new trial).

      Here, Appellant never objected to the alleged disproportionality of his

sentence either in the trial court or in a post-trial motion. Thus, we hold that

Appellant’s complaint is waived on appeal. See TEX. R. APP. P. 33.1(a); Gavin,

404 S.W.3d at 602.

      We overrule Appellant’s second issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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




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