                PD-0460-15




                             June 26, 2015




June 26, 2015
Opinion filed March 20, 2015




                                     In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-13-00048-CR
                                   __________

                          JOSEPH LEVY, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 16th District Court
                             Denton County, Texas
                      Trial Court Cause No. F-2012-0885-A

                     MEMORANDUM OPINION
      The jury found Joseph Levy guilty of one count of indecency with a child
and two counts of aggravated sexual assault. The victim was his daughter, C.L.,
who was under the age of fourteen.       The jury assessed punishment for the
indecency-with-a-child conviction at confinement for six years, for the first
aggravated sexual assault conviction at confinement for thirty years, and for the
second aggravated sexual assault conviction at confinement for thirty-five years.
The trial court sentenced him accordingly and ordered the sentences to run
consecutively. In two issues, Appellant contends that he was deprived of his right
to effective assistance of counsel and that the trial court erred when it admitted the
report of a sexual assault nurse examiner. We affirm.
      When Appellant and C.L.’s mother divorced, C.L. lived with her mother and
grandmother, R.E.S.     When C.L. was five years old, her mother died from
complications after surgery. C.L. then began living with Appellant, and Appellant
refused to allow visitation between C.L. and R.E.S. After R.E.S. picked C.L. up
from school one afternoon, C.L. told R.E.S. that she had learned how to make a
baby and that Appellant “had masturbated in front of her naked to show her what
babies were made of.” C.L. was removed from Appellant’s home and placed with
R.E.S., but as part of an agreement in which R.E.S. was granted custody of C.L.,
R.E.S. signed a statement reflecting that she did not believe C.L.’s allegations
against Appellant. R.E.S. obtained custody of C.L. in March 2004. After a bench
trial, Appellant was acquitted of the charges that stemmed from those allegations.
      R.E.S. and C.L. had no contact with Appellant until October 2009 when
R.E.S. sued Appellant for back child support. When Appellant appeared in court,
he brought his wife Jackie and their one-month-old son. Because C.L. had always
wanted a sibling, R.E.S. invited the Levys to attend C.L.’s orchestra concert that
night so that C.L. could meet her brother. After reconnecting, C.L. began spending
a lot of time with the Levys. In January 2011, C.L. moved to Addison to live with
the Levys.
      The record contains evidence that in the following summer, as C.L. played a
computer game, she commented that her back hurt; Appellant asked C.L. if she
wanted a massage. Appellant told C.L. that he would leave the room and that she
could “strip down to [her] bra and underwear, take off however much [she would]
like to,” and cover her backside with a blanket. C.L., wearing only her underwear
and covered with a blanket, lay down on the couch. Appellant returned and began

                                          2
massaging C.L.’s back. He asked C.L. to take off her underwear “[b]ecause he
wanted to get to a muscle.” After C.L. removed her underwear, Appellant “stuck a
finger inside of [her] and licked it and went, ‘Eww, you taste good.’” Appellant
told C.L. that she needed to “keep up hygiene down there” and should shave her
pubic hair but that he “wanted [her] to leave a strip” of hair.
      At the end of the summer in 2011, the Levys moved to The Colony, and
Appellant’s massages became a common occurrence. One night after Appellant
and Jackie fought, Jackie left. Appellant later went into C.L.’s room and told her
“that it would be the only time [they] had for a long time and so he wanted to give
[C.L.] a massage.” Appellant wanted to use massage oils but did not want Jackie
to know, so he instructed C.L. to lay one of her blankets on his bed. Appellant
took off his boxer shorts because he did not want to get massage oil on them either.
Appellant straddled C.L., who was lying facedown, and began massaging her back.
Appellant’s penis was touching C.L.’s buttocks, and when she asked him to move,
Appellant pretended that he did not realize that he was touching her. Appellant
told C.L. to roll onto her back; he massaged her breasts and digitally penetrated
C.L.’s vagina. Appellant then got on his knees, put C.L.’s legs over his shoulders,
and “started licking [her] vagina.” C.L. told Appellant that she did not like that
and that she wanted him to leave her alone. Appellant told C.L. that she “seemed
to like stuff inside of [her] more than outside,” and Appellant got a “glass dildo.”
C.L. told Appellant that she did not want to use the dildo and that she wanted to go
take a bath. Appellant said, “Come on. It’s a waste of water. Just come take a
shower with me.” After the shower, C.L. slept in her own bed that night even
though Appellant had “begged” her to “come spend the night with him.”
      In September, Jackie gave birth to the couple’s second child. Jackie spent
three days in the hospital. On one of those nights, Appellant and C.L. had dinner
at home, and after dinner, Appellant asked if he could give C.L. a massage because

                                           3
they “may not have a chance for a long time.” Appellant told C.L. that Jackie had
not been fulfilling him sexually since she became pregnant.            After C.L. told
Appellant three times that she did not want a massage, she ultimately acquiesced.
C.L. testified that Appellant “did the normal massage stuff at first,” and she
clarified that she meant that Appellant massaged her back, touched her vaginal area
with his mouth and fingers, and “put his fingers inside of [her].” Afterward,
Appellant told her to take a shower with him; she did, and she also slept in
Appellant’s bed that night. C.L. wrapped herself in a blanket on Jackie’s side of
the bed before she went to sleep. However, when C.L. woke up, she was not
wrapped in the blanket. Appellant had one hand inside her underwear touching her
skin, and Appellant’s other hand was moving under the blanket near his “penis
area.” C.L. asked Appellant what he was doing, and he pretended that he had been
asleep. Appellant told C.L. that he and Jackie “had full sex sessions” and that he
does “stuff like th[at] in [his] sleep all the time.”
       C.L. testified about another occasion when she and Appellant were lying on
the bed in the master bedroom and Appellant said, “Nipples are so weird. You can
punch them, and they get hard. You can lick them and they get soft.” C.L. said
that Appellant then “performed those acts.”             The last sexual encounter with
Appellant that C.L. remembers occurred on an occasion when Jackie had left the
house to pick up food. Appellant asked C.L. if she wanted a quick massage and
told her to take off her shirt, and C.L. told him “no” because Jackie would not be
gone long. C.L. testified that Appellant “let [her] go on that one and just massaged
[her] breast and back, and then Jackie came home.”
       In January 2012, C.L. told her teacher about the abuse. After the teacher
contacted authorities, C.L. was interviewed at the Child Advocacy Center,
examined by a sexual assault nurse examiner (SANE), and returned to R.E.S.’s
custody.    Appellant gave a statement to the officers at The Colony Police

                                             4
Department, and they obtained a search warrant. Several items described by C.L.
were seized, including two dildos, shower sponges, lotion, and C.L.’s polka-dotted
blanket that she put on the bed during a massage. The blanket had a floral scent
that was consistent with the smell of the massage oil found in the home. The
officers also took pictures and used an alternative light source that significantly
enhanced images of bodily fluids. Lieutenant Darren Brockway testified that he
saw more bodily fluid in Appellant’s home than he would normally see. Officers
seized the sheets on C.L.’s bed, the mattress cover from the bed in the master
bedroom, and three couch cushion covers because the alternative light source
indicated the presence of bodily fluids on those items.         Testing revealed the
presence of semen on the master bedroom mattress cover, but DNA testing showed
that C.L. was excluded as a contributor.
      In his first issue on appeal, Appellant contends that he was deprived of his
constitutional right to effective assistance of counsel at trial. Appellant raises four
grounds under this issue: (1) that trial counsel agreed to allow the State to amend
the indictment shortly before trial, (2) that trial counsel failed to investigate and
failed to present a defense, (3) that trial counsel failed to investigate the victim’s
prior allegation of sexual assault for which he had been acquitted, and (4) that trial
counsel failed to challenge the testimony of the SANE.
      The United States Constitution and the Texas constitution guarantee
individuals the right to assistance of counsel in criminal prosecutions. U.S. CONST.
Amend. VI; TEX. CONST. art. I, § 10. The right to counsel means more than simply
having a lawyer present; it requires the right to effective assistance. Lopez v. State,
343 S.W.3d 137, 142 (Tex. Crim. App. 2011). A defendant does not have a right
to errorless counsel but, rather, to objectively reasonable representation. Id. We
review the totality of the representation and the circumstances of each case without



                                           5
the benefit of hindsight. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim.
App. 2006).
      To determine whether trial counsel rendered ineffective assistance at trial,
we look at whether Appellant has shown that the representation fell below an
objective standard of reasonableness and, if so, whether Appellant has shown that
there is a reasonable probability that the result would have been different but for
trial counsel’s errors.   Strickland v. Washington, 466 U.S. 668, 687 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). “Judicial scrutiny
of counsel’s performance must be highly deferential,” and “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 689,
690; see also Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). To
properly and fairly assess trial counsel’s performance, we reconstruct the
circumstances of the challenged conduct, “evaluate the conduct from counsel’s
perspective at the time,” and make every effort “to eliminate the distorting effects
of hindsight.” Strickland, 466 U.S. at 689. The failure to satisfy one prong
negates a court’s need to assess the other prong. Id. at 697; Williams v. State, 301
S.W.3d 675, 687 (Tex. Crim. App. 2009).
      We first consider whether agreeing to the amended indictment shortly before
trial falls below an objective standard of reasonableness. Appellant argues that
trial counsel should have discussed the amendment with Appellant. Trial counsel
testified at the hearing on the motion for new trial that he told Appellant “about the
indictment and the motion to amend [the] indictment” and that he told Appellant
that, in his opinion, the amended charges were “much better” for Appellant
because the State had dropped “the charge of continuous sexual assault.” Counsel
testified, “At no time did [Appellant] tell me that, let’s think about this and let’s
not agree to amending the information.” Counsel further testified that he “would

                                          6
have told the Court about his concerns” if Appellant had expressed any. Although
Appellant testified that counsel did not tell him about the amendment until the day
of trial, we defer to the trial court’s resolution of conflicting testimony because the
trial court is the sole judge of the credibility of the witnesses. See Salazar v. State,
38 S.W.3d 141, 148 (Tex. Crim. App. 2001).
      Appellant also argues that the amended indictment was more prejudicial and,
thus, counsel should have objected to the amendment because the State alleged
dates and acts in the original indictment “that they could not prove” and because
Appellant faced two life sentences if found guilty on both counts of aggravated
sexual assault. The State responds that “trial counsel fully explained why it was
his sound trial strategy to allow the State to make the amendment” and that the
record from the hearing “supports the trial court’s implied findings that counsel did
not perform deficiently.”
      The original indictment contained two counts. Appellant was first charged
with the second-degree felony offense of indecency with a child by contact. See
TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).              A second-degree felony
offense of indecency with a child by contact is punishable by imprisonment for a
term of not more than twenty years or less than two years and by a fine not to
exceed $10,000. Id. §§ 12.33, 21.11(d). Appellant was also charged with the first-
degree felony offense of continous sexual abuse of a child. Id. § 21.02 (West
Supp. 2014). The State specifically alleged that Appellant had “commit[ted] two
or more acts of sexual abuse, to-wit: Aggravated Sexual Assault and/or Indecency
with a Child against [C.L.], on two or more occasions.”             A conviction for
continuous sexual abuse of a child is punishable by imprisonment for life or for a
term of not more than ninety-nine years or less than twenty-five years.              Id.
§ 21.02(h). In addition, a defendant who is convicted of continuous sexual abuse



                                           7
of a child is not eligible for release on parole.        TEX. GOV’T CODE ANN.
§ 508.145(a) (West Supp. 2014).
      The amended indictment contained three counts. In the first count, the State
again charged Appellant with indecency with a child by contact but alleged that the
offense occurred on December 1, 2011, instead of July 31, 2011, as originally
alleged. The State dropped the allegation of continuous sexual abuse of a child
and, instead, alleged two counts of aggravated sexual assault of a child. See PENAL
§ 22.021(a)(1)(B)(i), (iii).   In the amended indictment, the State specifically
alleged in count two that Appellant committed aggravated sexual assault by
causing the penetration of the child’s sexual organ with his finger and alleged in
count three that Appellant committed aggravated sexual assault by causing the
child’s sexual organ to contact Appellant’s mouth. Aggravated sexual assault is a
first-degree felony offense that carries a potential punishment of imprisonment for
life or for a term of not more than ninety-nine years or less than five years and a
fine not to exceed $10,000. Id. §§ 12.32, 22.021(e).
      Trial counsel testified that his decision to agree to the amendment was based
on trial strategy. The only amendment that the State made to count one was to
change the date of the alleged offense, and counsel explained that, because the
State had used the phrase “on or about” in the original indictment, it did not have
to prove the specific date originally alleged as long as the evidence showed that the
offense occurred prior to the indictment. Indeed, it is well settled that, “when the
State uses ‘on or about’ language and proves that the offense was committed on a
date different from that alleged in the indictment, but before presentment of the
indictment and expiration of the applicable statute of limitations, the offense took
place ‘on or about’ the date alleged in the indictment.” Thomas v. State, 444
S.W.3d 4, 9 (Tex. Crim. App. 2014).          Accordingly, we must disagree with



                                         8
Appellant’s contention that the State originally alleged dates and facts in count one
that it could not prove.
      We must also disagree that the State alleged dates in the second count of the
original indictment that it could not prove. In count two of the original indictment,
the State alleged that two or more instances of sexual abuse had occurred between
August 1, 2011, and October 31, 2011. In the amended indictment, the State
alleged in count two that Appellant committed aggravated sexual assault on or
about August 31, 2011, and alleged in count three that Appellant committed
aggravated sexual assault on or about September 27, 2011. Thus, the dates alleged
in counts two and three of the amended indictment fall within the range of the
dates alleged in count two of the original indictment.
      Similarly, there are no facts initially alleged in count two that the State was
no longer required to prove. Based on count two of the original indictment, the
State would have been required to prove that two instances of sexual abuse—either
two instances of aggravated sexual assault, two instances of indecency with a
child, or one instance of each—occurred from on or about August 1, 2011, through
on or about October 31, 2011. See PENAL § 21.02(b). As amended, the State was
required to prove that Appellant committed aggravated sexual assault on or about
August 31, 2011, by causing the penetration of the child’s sexual organ with
Appellant’s finger and that Appellant committed aggravated sexual assault on or
about September 27, 2011, by causing the child’s sexual organ to contact
Appellant’s mouth. See id. § 22.021(a)(1)(B)(i), (iii). We have compared the
charges alleged in the original indictment with the offenses alleged in the amended
indictment, and we must disagree that the original indictment was more favorable
to Appellant.
      Appellant also argues that the amended indictment was more prejudicial
because Appellant faced two life sentences. Trial counsel, however, disagreed and

                                          9
testified that the amended allegations were more beneficial for several reasons.
First, if Appellant had been convicted of continuous sexual abuse, as initially
alleged, there would have been a minimum sentence of imprisonment for twenty-
five years and no opportunity for parole. Trial counsel testified that, in his
experience with these kinds of cases in Denton County, Appellant would have been
sentenced to life without parole if he had been convicted of continuous sexual
abuse. Therefore, when the State offered to drop that allegation and, instead,
alleged two counts of aggravated sexual assault, trial counsel believed that the
amendment was in Appellant’s best interest. Trial counsel believed that agreeing
to the amendment was in Appellant’s best interest because of the possibility of
parole under the amended indictment and because the amended counts carried a
minimum sentence of imprisonment for five years instead of the minimum twenty-
five years for continuous sexual abuse. Additionally, counsel opined that it would
be more difficult for the State to prove the two specific instances of aggravated
sexual assault as alleged in the amended indictment because the jury would have to
unanimously agree to each specific instance in order to find Appellant guilty,
whereas the jury would not have to agree on the same two allegations to find
Appellant guilty of continuous sexual abuse. For the offense of continuous sexual
abuse, there could be a split among the jury but a guilty verdict nonetheless.
According to trial counsel, the amended indictment clarified which of the child’s
allegations the State would have to prove.
      Appellant offers no counter-argument to his trial counsel’s strategy other
than his opinion that such tactics could not constitute “any degree of strategy on
the part of a competent criminal attorney.” Trial counsel’s strategy, however, was
based on lower minimum sentences, the possibility of parole, and a more difficult
case for the State to prove. There was clearly a plausible strategic basis for trial
counsel’s actions. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App.

                                        10
1980). We will not use hindsight to second-guess trial counsel’s trial strategy; the
fact that another attorney might have pursued a different course does not render
counsel’s performance deficient. See Blott v. State, 588 S.W.2d 588, 592 (Tex.
Crim. App. 1979).
      We next consider Appellant’s complaints that trial counsel was deficient
because he failed to investigate and failed to present a defense. Appellant argues
that trial counsel “presented no evidence, no witnesses and advised [Appellant] not
to testify.” He also generally maintains that trial counsel failed to investigate prior
allegations that C.L. had made against him and that trial counsel failed to interview
potential witnesses who could have testified that C.L. “was a liar, or at the very
least, had a selective memory regarding what happened when and how she had
carefully crafted a set of facts for the jury to believe.”
      A criminal defense attorney “must have a firm command of the facts of the
case as well as governing law before he can render reasonably effective assistance
of counsel,” which requires that counsel “seek out and interview potential
witnesses.” Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
When we assess the reasonableness of an attorney’s investigation, we must
consider the quantum of evidence already known to counsel and whether the
known evidence would lead a reasonable attorney to investigate further. Ex parte
Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006) (citing Wiggins v. Smith,
539 U.S. 510, 527 (2003)).           “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary. . . .    [A] particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.”          Strickland, 466 U.S. at 691.       “When
challenging an attorney’s failure to call a particular witness, an ‘applicant must
show that [the witness] had been available to testify and that his testimony would

                                            11
have been of some benefit to the defense.’” Ex parte Ramirez, 280 S.W.3d 848,
853 (Tex. Crim. App. 2007) (alteration in original) (quoting Ex parte White, 160
S.W.3d 46, 52 (Tex. Crim. App. 2004)). Trial counsel’s failure to present certain
evidence is immaterial absent a showing that the evidence was available and that
the evidence would have affected the outcome of the proceeding. King v. State,
649 S.W.2d 42, 44 (Tex. Crim. App. 1983).
      The record from the hearing on Appellant’s motion for new trial shows that
C.L. had previously accused Appellant of sexual abuse in Dallas County and that
Appellant had been acquitted of those charges. Appellant argued that his trial
attorney “failed to investigate the prior allegations by failing to contact . . . the
prior attorney for [Appellant] who had information regarding the prior false
allegation.”   Counsel testified at the hearing, however, that he reviewed the
pleadings from that case and considered the potential testimony on this issue
before strategically deciding that he did not want to introduce that evidence at trial.
Trial counsel determined that “any information about the prior trial of alleged
sexual abuse of [C.L.] by [Appellant]” would have been “catastrophic” for the
case. Counsel’s “goal was to keep all reference[s] to the Dallas trial out of this
trial,” including any witness who wanted to discuss the issue, the victim’s
references in her statement that she had recanted those allegations, and Appellant’s
references to that case in his statement to police.       Indeed, when Appellant’s
statement was published to the jury, the video was muted during any references to
the Dallas trial. Counsel testified that, based on his discussion with the jury after
the verdict, the jurors had confirmed his belief and had said that it “would have
looked bad” for Appellant if they had known about the prior allegations.
Moreover, there is no indication in the record as to what additional information
counsel would have obtained from talking to Appellant’s prior attorney.



                                          12
      As a part of his motion for new trial, Appellant offered the affidavits of
Jackie; William Pierson, Jackie’s brother-in-law; Barbara Pierson, Jackie’s mother;
and Mark Bussell, Appellant’s friend. The record shows that trial counsel talked
with Appellant, Jackie, and Barbara before trial. He also reviewed the State’s file,
including videotapes and audiotapes. Barbara and William submitted affidavits to
trial counsel before trial, which show that they both would have testified that C.L.
had admitted to them that she had lied when she accused Appellant of sexual abuse
in the Dallas County case because “[her] Nanny told [her] to.” Barbara also would
have testified that she had observed C.L. “behave[ing] inappropriately towards her
father and he would tell her no and not to try to get in his lap.” Both Barbara and
William would have testified that they never saw Appellant behave inappropriately
toward C.L. Trial counsel explained that Barbara and William believed that they
had provided information that would be helpful, but counsel disagreed and instead
thought that this testimony “would have detracted from our case.”
      Trial counsel also testified that it was a strategic decision not to present alibi
evidence because, in most cases involving multiple allegations of sexual abuse,
defendants “focus on the date thinking that it’s important” and “invariably”
provide an alibi for that day, but counsel believed that the date is “really not
important” because of the on or about language used in the indictment. William,
Jackie, and Bussell each would have testified that they were with Appellant all day
on the date that the State alleged in count one of the original indictment and that
none of them had observed any inappropriate behavior that day. Jackie would
have similarly testified as to the dates alleged in counts two and three of the
amended indictment.      Trial counsel specifically testified regarding Bussell’s
testimony about being with Appellant on July 31, 2011. Trial counsel explained,
“[H]ow [Bussell] can prove that nothing happened on that day, in my mind, was a
red herring and detracted from the case and made Mr. Bussell a marginal witness at

                                          13
very best.” Moreover, while it was initially alleged that the offense in count one
occurred on or about July 31, 2011, the State amended the pleadings to allege that
the offense instead occurred on or about December 1, 2011.
      The affidavits offered by Appellant during the hearing on the motion for
new trial show that there were witnesses who had been willing to testify at trial
about C.L.’s inappropriate conduct. C.L. had told Barbara that she watched porn at
her “Nanny’s” house and that she lied about her age in order to play online games.
C.L. told William that her aunt had “played with herself” and “touched her
genitals” in front of C.L.; Barbara was also prepared to testify to that admission.
William was also willing to testify that he thought that, on one occasion, he caught
C.L. watching him change clothes. Jackie would have testified that C.L. “was a
disciplinary problem” and had threatened to move in with her grandmother in
Florida “with or without [Appellant’s] permission.” Trial counsel testified that he
did not think that the testimony would add anything to the case. He told the
witnesses that he did not call them to testify because the jurors would think
Appellant’s family members were lying to protect Appellant.
      At the hearing on the motion for new trial, the State cross-examined Jackie
about the certain periods of time that she was not at the home. Jackie admitted
that, on one occasion, she left at midnight after fighting with Appellant and
returned the next morning and that she was in the hospital for three days when she
had a baby. The State argued that “quite frankly, whatever happened while you
were in the hospital, you would not have really any firsthand knowledge of what
happened back at your house” and pointed out that “the State doesn’t have to prove
an exact date” that was alleged in the indictment. The State also established bias
by eliciting testimony on cross-examination that Jackie and the children had been
living on their savings while Appellant was in jail and that she was “currently
looking for work.”

                                        14
      After trial counsel reviewed Appellant’s statement to the police, he was of
the opinion that Appellant would not make a good witness. Trial counsel testified
that he was also concerned that the State might elicit damaging facts on cross-
examination that had not been introduced at trial. When asked why he did not call
any witnesses, counsel said, “If you call a witness to the stand, oftentimes they can
affirm a position that the State is trying to [prove]; and I think that would have
occurred in this case.” Trial counsel testified that his “general theory is not to help
the State prove its case.”
      Trial counsel did call the forensic DNA analyst who testified that C.L. was
not a contributor to the DNA found on the master bedroom mattress cover.
Counsel testified that he did not believe that there were other potential witnesses
who had relevant information that would help the case and, instead, just attacked
the State’s case. The theme of the defense’s case was to show that C.L. had
manipulated people so that she could move in with her father and that, when C.L.
changed her mind and wanted to return to her grandmother, she again used
manipulation. Counsel introduced this theme to the jury during voir dire and
maintained the theme throughout opening statements, cross-examination of
witnesses, and closing arguments.       The State addressed this theme during its
closing arguments as well.
      During the trial, the State sought to introduce a forensic interview of C.L.
that was conducted at the Child Advocacy Center. Appellant objected that the
interview was hearsay and presented case law in support of his position. The State
argued that the exhibit was a prior inconsistent statement. Trial counsel explained
that he did not want the interview admitted because he thought C.L. was defensive
in her testimony at trial and wanted that to be the jury’s impression of her rather
than the impression left in the interview during which she had not been
“challenged in any way or cross-examined at the time.” After a bench conference,

                                          15
the State “withdrew the evidence or never pursued it.” Trial counsel considered
this to be a small victory for the defense.
      The lengthy record in this case shows an able defense of a client who was
identified by his daughter as committing several acts of sexual abuse over a certain
period of time. Although she varied in her description of the location and the
timeline of some of the events, C.L. testified to the same facts at trial that she
initially told the SANE. Counsel emphasized the inconsistencies in location and
time between C.L.’s initial report and her testimony at trial, and counsel directed
the jury to facts that C.L. testified to for the first time at trial. Moreover, counsel
argued that several facts that C.L. testified to did not make sense and maintained
that the State failed to carry its burden in this case. The record shows appropriate
pretrial motions, appropriate opening and closing statements, and vigorous cross-
examination of the State’s witnesses.
      We have carefully examined the arguments, the evidence, and trial counsel’s
explanations at the hearing on the motion for new trial. Because the record shows
that Appellant’s trial counsel reviewed the facts of the prior trial and the potential
evidence on that issue and considered whether to present such evidence in the
present trial, we disagree with Appellant that counsel failed to investigate the prior
allegations.   Additionally, nothing in the record demonstrates that counsel’s
representation at trial was the product of an unreasonable strategy or shows how, if
at all, the outcome of the proceeding would have been different absent the alleged
deficiencies. See Ex parte Flores, 387 S.W.3d 626, 638 (Tex. Crim. App. 2012).
Based on the totality of the representation and the circumstances present in this
case, we cannot conclude that the record reveals deficient performance sufficient to
overcome the presumption that the representation fell within the range of
reasonable professional assistance. See Strickland, 466 U.S. at 687–89.



                                          16
      We next address Appellant’s complaint that trial counsel failed to investigate
or rebut what Appellant characterizes as false testimony by the SANE. Appellant
argues that SANE Lucrecia DeLawter, who claimed to be relying on a 2007 study
by Nancy Kellogg, “testified that 96% of the time there are no signs of penetration
in a sexual assault case.” Appellant asserts that it was, instead, a 2004 study and
that it “showed that 36% of the females in Dr. Kellogg’s study did not have normal
findings.” Appellant directs us to the website for the Journal of the American
Academy of Pediatrics where the study can be found.
      In her testimony, DeLawter did not connect the statistic cited by Appellant
to any particular study but stated that this information was based on “current
literature.” DeLawter testified that the Kellogg study was based on thirty-six
pregnant adolescent females and that “only two of those thirty-six had any
diagnostic findings of penetration.” The State included the Kellogg study as part
of the appendix to its brief, and to support its argument that the testimony was
supported by the study, the State quotes a finding that, “[d]espite definitive
evidence of sexual contact (pregnancy), only 2 of 36 adolescents had genital
changes that were diagnostic of penetrating trauma.”
      The Kellogg study, however, is not part of the trial record. And, because
this ground was not asserted in the motion for new trial, there was no evidence in
the record demonstrating the truth or falsity of DeLawter’s statements. From the
record before us, we do not know that the testimony was false, nor does the record
demonstrate that another expert would have testified differently on rebuttal.
Consequently, we conclude that Appellant has failed to show that counsel’s
performance fell below an objective standard of reasonableness. See Strickland,
466 U.S. at 687–88.
      Appellant additionally argues that trial counsel was ineffective during plea
negotiations. Specifically, Appellant contends that he “was never informed of

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what he was facing if he went to trial thus he could not make an informed decision
about any plea negotiations.” The right to effective assistance of counsel applies to
plea negotiations. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012). To establish
prejudice in an ineffective-assistance claim in which the accused rejects a plea
bargain because of bad legal advice, the accused “must show a reasonable
probability that: (1) he would have accepted the earlier offer if counsel had not
given ineffective assistance; (2) the prosecution would not have withdrawn the
offer; and (3) the trial court would not have refused to accept the plea bargain.” Ex
parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).
      The record shows that Appellant rejected a plea offer of fifteen years. At the
time of the plea offer, the indictment had not yet been amended to delete the
allegation of continuous sexual abuse.        Therefore, as discussed previously,
Appellant faced a maximum punishment of confinement for twenty years if
convicted in count one and of confinement for life or up to ninety-nine years if
convicted in count two. Counsel testified at the hearing on the motion for new trial
that he advised Appellant of the charges and of the range of punishment and that he
told Appellant that “it was going to be a long sentence if they found him guilty.”
Further, because continuous sexual abuse “was still on the table,” trial counsel
warned Appellant that “he would get no parole.”
      Appellant testified that trial counsel had discussed the range of punishment
but not the parole issue. Even if we were to assume that counsel did not inform
Appellant that he would be ineligible for parole, there is no evidence in the record
showing that Appellant would have accepted the plea offer if he had been advised
of his ineligibility for parole. See id. Appellant has not shown that he was denied
the right to effective assistance of counsel. See Strickland, 466 U.S. at 687.
Appellant’s first issue is overruled.



                                         18
      In his second issue, Appellant complains that the trial court erred when it
admitted the report of DeLawter over his hearsay objection and that C.L.’s
statements to DeLawter did not satisfy the exception for statements made for the
purpose of medical diagnosis or treatment because they were made for the purpose
of a criminal investigation. “Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment” are not excluded
by the hearsay rule. TEX. R. EVID. 803(4).
      In order to preserve error for appellate review, a party must object each time
the inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858
(Tex. Crim. App. 1991). When the State offered the report, Appellant objected to
the report as hearsay, and the trial court overruled the objection. When the State
subsequently asked DeLawter to read C.L.’s statements that she made to her and
that were contained in her report, Appellant objected. The State asked DeLawter
to summarize what C.L. had told DeLawter, and DeLawter testified that C.L.
reported “a history of penetration to her female sexual organ with [Appellant’s]
mouth, tongue and fingers” and that Appellant had given her massages and asked
her to take off her clothes. According to DeLawter, C.L. had also reported that
Appellant had checked C.L.’s genitalia “to see if she was keeping herself pretty
clean” and had “stuck a finger in her, and then when he took it out he licked his
finger and said that ‘You taste so good. You must be keeping it pretty clean.’”
DeLawter also testified that C.L. reported that Appellant had told C.L. that “she
should probably start to shave down there to keep herself clean” and that, when
C.L.’s breasts were aching and causing discomfort from maturing, Appellant
massaged her breasts. Appellant warned C.L. not to say anything “because Jackie
would overreact.”

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      Appellant twice objected to DeLawter reading from the report. Appellant
did not, however, object to DeLawter’s testimony in which she summarized C.L.’s
statements, did not object when the State published copies of the report to the jury
members, and did not request a running objection. Because Appellant failed to
object each time the statements were offered into evidence, he has not preserved
error regarding any of these statements. See Hudson v. State, 675 S.W.2d 507, 511
(Tex. Crim. App. 1984) (“an error in admission of evidence is cured where the
same evidence comes in elsewhere without objection”); see also Valle v. State, 109
S.W.3d 500, 509–10 (Tex. Crim. App. 2003).
      Appellant did preserve error as to other statements reflected in the report that
DeLawter did not summarize. These statements related to massages, sex toys,
showering together, waking up with Appellant’s hands inside her panties, and a
sexual assault at Appellant’s office. Even if we assume that these statements to
DeLawter were not made for the purpose of medical diagnosis or treatment and
that the trial court erred when it admitted the statements, the error was harmless
because C.L. told the jury the same facts that she had previously told DeLawter,
and that testimony was not hearsay. See Taylor v. State, 268 S.W.3d 571, 592–93
(Tex. Crim. App. 2008).
      Appellant also complains in his second issue that the trial court erred in
allowing a copy of DeLawter’s report to be substituted for the copy that had been
admitted as the original exhibit. The record shows that the original Exhibit No. 1
had apparently been misplaced and that, prior to resting its case, the State asked
that a copy be substituted for the missing exhibit. The record shows that, upon
admission of the exhibit during DeLawter’s testimony, the trial court permitted the
State to make twelve copies of the exhibit and publish them to the jury. Thus, each
juror had been given a copy of the original exhibit. Contrary to Appellant’s
assertion, there is nothing in the record to indicate that the substituted exhibit was

                                         20
not an exact duplicate of the original exhibit, that the best evidence rule was
violated, or that the substitution violated Appellant’s rights to due process.
Appellant’s second issue is overruled.
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


March 20, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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