                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-16-00384-CR


FARHAN AWAN                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                 STATE


                                   ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1434446D

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                          MEMORANDUM OPINION 1

                                   ----------

     In three points, Appellant Farhan Awan appeals his conviction for

continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02 (West

Supp. 2017). We affirm.




     1
      See Tex. R. App. P. 47.4.
                                   Background

I. Appellant’s abuse of A.B.

      In 2003, five-year-old A.B. 2 emigrated from Pakistan to Bedford, Texas,

with her recently-married Mother, her Stepfather, and her Stepfather’s two older

children—Stepbrother and Stepsister. 3 They moved into a small, two-bedroom

apartment in Bedford and soon after the move, Mother gave birth to another son,

Brother.

      A.    The abuse began shortly after Appellant moved into A.B.’s
            apartment.

      In December 2007, A.B. was 10 years old when her Stepfather’s brother

(Uncle) and his son, Appellant, also emigrated from Pakistan and moved into the

small Bedford apartment with her family. The addition of two more residents in

the apartment created crowded conditions. Mother, Stepfather, A.B., and Brother

slept in one bedroom where Mother and Brother shared a bed, A.B. slept on a

“fold-away” bed, and Stepfather slept on the floor. Appellant, who was in his

early 20s, shared the second bedroom with Stepbrother, 4 while Uncle slept in the

living room on a couch.


      2
      To protect their privacy and for convenience, we will refer to the
complainant and family members by initials and in terms of their relation to A.B.
See 2nd Tex. App. (Fort Worth) Loc. R. 7; McClendon v. State, 643 S.W.2d 936,
936 n.1 (Tex. Crim. App. [Panel Op.] 1982); see also Tex. R. App. P. 9.8(b) &
cmt.
      3
       Stepbrother and Stepsister are 10-15 years older than A.B.
      4
       At this point, Stepsister was no longer living in the apartment.


                                         2
      When Appellant arrived in Bedford, the family trusted him. He was thought

to be very religious, responsible, and trustworthy, and he was the go-to person

for help with any technological issues. But shortly after his arrival, Appellant

became inappropriately affectionate toward A.B.      At trial, A.B. testified that it

began when Appellant invited her to play a video game with him. Playing the

video game led to a game of keep-away with an orange foam ball. According to

A.B., whenever she had the ball, Appellant would wrap himself around her as if to

grab the ball but would actually grab her breasts and vagina over her clothes

instead. A.B. testified that she knew his touching was inappropriate, and she told

him to stop. But while Appellant promised to stop, he continued touching her

inappropriately whenever they played the game. And A.B. testified that they

played every night for a few weeks.

      Eventually, things progressed further. One night while A.B. was sitting in

Appellant’s lap on the living room couch watching TV, he touched her breast

underneath her shirt. A.B. testified that, although she knew the touching was

inappropriate and it scared her, she did not think she could stop him.

      Undeterred, Appellant began touching A.B. more often. A.B. recounted for

the jury how, after school or at night, Appellant would reach under her clothes

and touch her genital area while she sat in his lap in front of the computer—a

computer he used to show her pornographic websites and videos.                  A.B.

estimated that Appellant touched her in this manner at least 10 to 15 times while

he was living in the family apartment.


                                         3
      Appellant became bolder with his abuse, too. A.B. testified, “There were

several times where he would make me like bend over the couch and he would

like dry hump me from behind. He would just grab me in random places like

around the apartment.”

      Although Mother was not employed outside the home and was present

when these abusive acts occurred, she was usually out of sight in the kitchen.

Mother and A.B. testified that, consequently, Mother was unaware of what was

taking place.   Appellant actively deterred A.B. from telling Mother.      As A.B.

testified, “There were several times when I threatened to tell my mom and I

would try to pull away from him and go get my mom, but he made it very clear

that she wouldn’t believe me.” At one point, A.B. did attempt to tell Mother about

the abuse, but when she told Mother that Appellant was “watching naked people

on the computer,” Mother scolded A.B., telling her not to speak of it again and

that, even if Appellant was doing such a thing, it was none of their business.

      A.B. alleged at trial that both Stepfather and Mother had observed

separate incidences of abuse.      According to A.B., Stepfather saw Appellant

touching her breasts beneath her shirt while they watched television and

immediately told Mother about it, but Mother dismissed Stepfather’s concerns,

telling him that he must have been mistaken. When Mother questioned A.B.

about Stepfather’s concern, according to A.B., she lied and denied that it

happened. Another time, according to A.B., Mother observed Appellant humping




                                         4
A.B. while she was bent over the couch, but said nothing until Appellant left the

apartment, at which point she told A.B. not to allow someone to do that to her.

        B.   The abuse continued when Uncle and Appellant moved to their
             own apartment.

        After about four months, in April 2008, Uncle and Appellant moved into a

one-bedroom apartment within the same apartment complex, about a minute’s

walk from A.B.’s apartment. In the next four or five months, at Mother’s urging,

A.B. and her little brother, who was about three or four years old, visited

Appellant at his apartment at least twice a week after school while Uncle was at

work.    During these visits, while her brother entertained himself with toys,

Appellant continued his routine of touching A.B.’s genitals while she was sitting in

his lap and forcing her to watch pornography, often explaining what was

happening in the pornographic scenes.         A.B. estimated that this happened

approximately 25 times in Uncle and Appellant’s apartment. According to A.B.,

on three or four occasions, Appellant took her into the closet, turned out the

lights, and pretended to be a police officer conducting a pat-down search over

and under A.B.’s clothes.

        Over time, Appellant grew even bolder. A.B. recounted an instance in

which Appellant forced A.B. to lie down on a bed and, according to A.B., he laid

on top of her and “practice[d] missionary” by humping her and moaning. Another

time, Appellant lifted A.B.’s shirt and put his mouth on her nipples.       Finally,

Appellant attempted to have penetrative sex with A.B.           On that occasion,



                                         5
according to A.B., Appellant made her bend over the bed, took her pants off, and

“was rubbing his penis onto [her] butt and he kept asking [her] where [her] hole

was.”    Still only 10 years old at the time, A.B. did not understand.        As she

described to the jury,

        And so I felt his penis on my butt because it was wet and he kept
        taking it in and out. And at one point during that instance I felt a
        really sharp pain in my vagina and at that point, like, I screamed and
        I told him it really hurt and he apologized. And he kept saying, like, I
        won’t do it again, and then he just got up and he went to the
        bathroom and he showered.

        C.    Appellant continued to abuse A.B. once he moved to an
              apartment across the hall from hers.

        Later in 2008, the rest of Appellant’s family moved to Bedford from

Pakistan, and they all moved into a two-bedroom apartment directly across from

A.B.’s apartment. When A.B. visited Appellant’s new apartment, he grabbed her

by the wrist and informed her it would be the last time they could “do anything”

because his family was moving in. According to A.B., he kept hold of her wrist,

refusing to let her leave the apartment, but she finally managed to break free and

return to her own apartment.

        Unfortunately, Appellant’s statement did not prove to be true.        On one

occasion, when Appellant’s apartment was full of family members attending a

traditional Friday-night dinner, Appellant approached A.B. in a bedroom and told

her, “We can do things here, it’s okay, no one will find out.”            When A.B.

threatened to scream so everyone could hear, according to A.B., Appellant did




                                           6
not appear to care. That evening, A.B. managed to get outside of the bedroom

and within sight of Uncle, so Appellant was thwarted.

         But, according to A.B., the abuse continued. Whenever Appellant would

drive her places, A.B. testified, “he would shove his finger up [her] anus” through

her clothes. And A.B. recounted an instance when she was 12 or 13 years old

and Appellant “just started grabbing [her] butt” when they were in Walmart

shopping for school supplies.

         D.    A.B. outcried to Mother and Stepsister, and they confronted
               Appellant.

         According to A.B., the abuse finally stopped when she was about 14. In

the next year, when she was 15 and a high school sophomore, A.B. finally

succeeded in telling her Mother about the abuse. Mother found A.B. sitting in her

closet, upset and crying, and assumed that A.B. was upset that she had lost a

tennis match. But instead, A.B. confessed that she was crying because her first

boyfriend had recently broken up with her.       Mother expressed that she was

shocked and upset by this revelation because she had forbidden A.B. from dating

until she was older.      At that point, A.B. said she “snapped” and confronted

Mother, accusing her of ignoring Appellant’s sexually abusive behavior over the

years.

         Mother testified at trial that A.B. told her that Appellant “touch[ed her]

everywhere” when he was living with them and pointed to her breasts, between

her legs, and her behind. She also said that A.B. told her about his inappropriate



                                          7
touching during the orange-ball game and his touching her bottom while they

were shopping at Walmart.

      Despite A.B.’s revelation, Mother did not immediately contact the police.

Instead, she told Stepsister, who then telephoned A.B. Stepsister testified at trial

that A.B. called her and told her about Appellant’s abuse. A.B. testified that she

told Stepsister, in detail, what had happened and that Stepsister was the first

person she told about the “penetration incident.” The family still did not contact

police, and they waited another week to confront Appellant so as not to disturb

Stepbrother’s wedding festivities.

      A.B., Mother, and Stepsister testified that, after the wedding, Stepsister

called Appellant and left a voicemail in which she said she knew what he had

done to A.B. The women testified that, within minutes, Appellant returned her

call and immediately started apologizing. Stepsister recalled Appellant’s pleas

for forgiveness and testified that he said, “I’m really sorry what I did. I know I did

wrong and I’m asking forgiveness from God that he will forgive me. I know I did

what I did, it was wrong and I shouldn’t have done it.” 5

      Appellant also acknowledged his culpability on a second occasion.

Stepfather testified at trial that once, when he and Appellant were finishing their



      5
       Shortly after the phone call, Appellant’s mother came to A.B.’s family’s
apartment and confronted Mother. A.B. recalled “a lot of screaming” and that
Appellant’s mother tried to blame A.B., claiming that A.B. had “seduced”
Appellant.


                                          8
prayers at the mosque, he asked Appellant what had happened.            Stepfather

recounted the conversation and Appellant’s pleas for forgiveness:

      [Appellant] said, I did five time, but he didn’t mention what he do.
      That was his answer. And he said I prayed to Allah God forgive me
      what I did wrong or you can beat me. I said, no, I can’t do this
      because . . . I can’t take law in my hand to beat you up. And then he
      said, I consider her as a . . . sister.

      Still, the family did not report Appellant to the police. Distressed over her

family’s lack of action and feeling as though she was being blamed for the abuse,

A.B. began struggling at school and on her tennis team.        In April 2014, she

eventually confided in her tennis coach that she had been abused, and he

directed her to the school counselor, Peggy McIntire. When McIntire met with

Mother and A.B., she encouraged Mother to arrange counseling for A.B., which

Mother agreed to do. But when school began again in the fall, McIntire met with

A.B. and discovered that Mother never arranged for counseling. It was at that

point that McIntire questioned A.B. about specifics related to the abuse and

subsequently reported the abuse to the police.

      Accompanied by Mother, A.B. met with Bedford Police Detective Pat

Ripley on December 23, 2014. Detective Ripley described A.B. as appearing

calm and very intelligent throughout their hour-long interview, and he perceived

no indications that she had fabricated any of the allegations. As a result of

Detective Ripley’s investigation, Appellant was arrested, and in December 2015,

he was charged with: (1) one count of continuous sexual abuse of a child by

committing aggravated sexual assault by penetrating A.B.’s sexual organ with his


                                        9
finger and/or his penis and indecency with a child by contacting her sexual organ

with his hand; (2) one count of engaging in sexual contact by touching A.B.’s

genitals; and (3) one count of engaging in sexual contact by touching A.B.’s

breast. See Tex. Penal Code Ann. § 21.02, § 21.11 (West Supp. 2017).

II. The trial

      A. Defense counsel’s mistake during voir dire

      The case proceeded to trial in late September 2016. During voir dire, Juror

Number 8 confessed that she would be “somewhat biased because [she] was

sexually molested when [she] was a child” and that her “emotions might be more

than . . . what [she] would be able to help.” When the trial court explained that

the case could be emotional “for a lot of people” and asked whether she could

follow the law despite any emotional reaction she may have, Juror Number 8

responded that she would “try to follow the law.” Later, upon further questioning

by defense counsel, Juror Number 8 elaborated on her experiences, explaining

that she was molested by several family members and her mother, siblings, and

some of her nieces and nephews had also been sexually abused. She told the

trial court that the experiences made her very emotional, but that she “could

listen and try [her] best to help.”   Upon further questioning, Juror Number 8

stated, “I think I would like to be on [the jury] and just so that I messed up, can

learn to grow beyond what happened.”         Defense counsel challenged Juror

Number 8 for cause but the trial court denied his challenge.




                                        10
      From the record, it is apparent that defense counsel intended to include

Juror Number 8 in his list of preemptory strikes, but he failed to do so. Once the

court named and seated the members of the jury, counsel requested to approach

the bench. In a bench conference, defense counsel asserted that he had struck

Juror Number 8, to which the trial court replied that she was not on the defense

counsel’s list of strikes. Defense counsel admitted his mistake, stating on the

record, “That’s crazy. I struck the wrong one.” The trial proceeded with Juror

Number 8 sitting on the jury.

      B. The evidence presented by Appellant

      In response to the above-described evidence of abuse that was presented

by the State, Appellant testified on his own behalf and presented testimony by his

brother, his sister, and his mother.

      Through an interpreter, Appellant admitted that he and A.B. played the

orange-ball game, but he denied doing so more than three to five times and

claimed that any inappropriate touching occurred accidentally. He flatly denied

A.B.’s other allegations of abuse. He also denied speaking about the allegations

with Stepfather at the mosque or telling Stepfather that “[i]t happened five times.”

According to Appellant, the first time he heard about the abuse accusations was

when Stepsister called and left him a message that said, “Call me.” He claimed

that, when he called Stepsister back, she and Mother were crying and yelling at

him, and, thinking that they were upset with him for playing the orange-ball game

with A.B., he apologized once in respect of Stepsister and Mother. As to any


                                        11
requests for forgiveness from God, he explained that in his religion it is

customary to ask for general forgiveness every time one prays, not necessarily

for anything in particular.

      Appellant’s mother, brother, and sister testified that they never observed

A.B. and Appellant interacting in a manner that concerned them, but they also

admitted that they did not join Appellant and Uncle until more than a year after

Appellant and Uncle moved to the United States.

      C. Conviction and sentencing hearing

      The jury found Appellant guilty of continuous sexual abuse.          Appellant

elected for the trial court to determine punishment, and the trial court sentenced

Appellant to 35 years’ confinement.

      After Appellant’s sentence was pronounced, defense counsel explained on

the record that he had discussed Appellant’s options for appeal with Appellant

and his family. Defense counsel represented that they had discussed “all the

pros and cons” of his handling the appeal and Appellant trusted him and

requested that he continue his representation and handle the appeal. Defense

counsel, who had previously apprised the trial court that he was a candidate for

an elected judicial office, claimed that, if elected, he could still file Appellant’s

brief before assuming the bench, and he requested that the trial court allow him

to stay on the case. The trial court consented.




                                         12
      D. Postsentencing developments

      On October 4, 2016, five days after the trial court sentenced Appellant, the

State provided defense counsel with a document entitled “State’s Response to

Defendant’s Motion for Discovery of Exculpatory and Mitigating Evidence.” The

document described itself as a notice served in accordance with Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963) and stated,

      That on or about September 30, 2016 at the Tarrant County District
      Attorney’s Office, [Stepfather] told Assistant Criminal District
      [Attorneys] Matt Smid and Brook Panuthos that the Defendant is
      “probably 75 percent innocent.” He said that he is basing this
      opinion on what he did not see. He also said that his brother,
      [Uncle], never saw anything suspicious happen between [A.B.] and
      Defendant either. [Stepfather] then asked what he could do to
      ‘undo’ the sentence. He also asked if he could bond the Defendant
      out.

In November, after Appellant’s trial counsel was elected to the judicial position he

sought, the trial court appointed new appellate counsel.

                                    Discussion

I. Ineffective assistance of counsel

      Appellant’s first two points relate to his claims of ineffective assistance of

trial counsel. In his first point, Appellant argues that the Texas rules of appellate

procedure and Texas caselaw act to deprive him of his federal constitutional

rights to counsel, a fair trial, and to due process of law because there was no

way for him to meet the 30-day deadline to file a motion for new trial in order to

develop any evidence in support of his claims of ineffective assistance of

counsel. In his view, because it is a “practical impossibility” to meet that 30-day


                                         13
deadline, he is forced to bring his claim as a writ for habeas corpus, in which

proceeding he would not have the right to assistance of counsel.

       In his second point, Appellant requests that we abate the appeal so that he

may file an out-of-time motion for new trial with the trial court. Also as part of his

second point, he argues that any failure on our part to allow an out-of-time

motion for new trial will violate his rights to counsel, fair trial, and due process of

law.

       Because the resolution of his first point is dependent upon resolution of his

second, we will address them in reverse order.

       A. Relevant facts

       At the September 29, 2016 sentencing hearing, defense counsel confirmed

that he had discussed Appellant’s options with Appellant and his family and that

Appellant wished to continue with the same counsel. The trial court reappointed

defense counsel to serve on appeal, and defense counsel filed Appellant’s notice

of appeal that same day. On October 4, the State filed and served defense

counsel with the Brady notice of Stepfather’s statements after the trial.         Any

motion for new trial was due October 29, but none was ever filed. Tex. R. App.

P. 21.4.

       Following defense counsel’s successful election bid, the trial court

appointed new appellate counsel for Appellant.           Once Appellant’s counsel

reviewed the record, he determined that Appellant had two possible claims for

ineffective assistance of prior counsel. In April, Appellant filed a motion to abate


                                          14
this proceeding and remand it to the trial court so that he could pursue an out-of-

time motion for new trial in order to present the two claims of ineffective

assistance. See Tex. R. App. P. 2 (permitting an appellate court to suspend the

rules of appellate procedure and order a different procedure); Cooks v. State,

240 S.W.3d 906, 911 (Tex. Crim. App. 2007) (discussing the availability of an

abatement and remand to allow a criminal defendant to file an out-of-time motion

for new trial). We denied his request in an April 13 order.

      B. Applicable law

      As a matter of federal constitutional law, the “appointment of counsel for an

indigent is required at every stage of a criminal proceeding where substantial

rights of a criminal accused may be affected,” and this includes the first appeal

as of right. Mempha v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257 (1967);

Douglas v. California, 372 U.S. 353, 357, 83 S. Ct. 814, 816 (1963). Following

this precedent, the court of criminal appeals has held that the 30-day period

following sentencing—during which an appellant may file a motion for new trial—

is considered a “critical stage” of criminal proceedings during which a defendant

is entitled to effective assistance of counsel. Cooks, 240 S.W.3d at 911; see

Tex. R. App. P. 21.4 (requiring motions for new trial to be filed no more than 30

days after sentencing). A defendant may file a motion for new trial in order to

adduce facts not otherwise in the record in order to preserve an issue for appeal,

such as a complaint of ineffective assistance of counsel. Tex. R. App. P. 21.2;

Cooks, 240 S.W.3d at 910 n.5 (citing, among others, King v. State, 613 So.2d


                                        15
888, 891 (Ala. Crim. App. 1993) (“post-trial motion is necessary in certain

instances to preserve issues for appellate review, most notably claims of

ineffective assistance of counsel”)).

      Where, as here, the appellant was represented by appointed counsel

during the 30-day period following sentencing, a rebuttable presumption arises

that his appointed counsel continued to adequately represent him during this

postconviction stage. Cooks, 240 S.W.3d at 911. As part of that presumption,

we infer that the attorney discussed the merits of a motion for new trial with the

defendant and, with his attorney’s counsel in mind, that the defendant declined to

pursue the motion. Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App.

1998) (op. on reh’g), cert. denied, 525 U.S. 1181 (1999).

      The appellant can rebut this presumption with evidence that the

representation was ineffective. Cooks, 240 S.W.3d at 911. For instance, in

Cooks, the defendant was unrepresented by counsel for 20 days after he was

sentenced. Id. By the time appellate counsel was appointed, there were only 10

days left to file a motion for new trial and the newly-appointed appellate attorney

later asserted that this was not enough time for her to adequately assist the

defendant in deciding whether to file a motion for new trial. Id. The court of

criminal appeals held that this was sufficient to rebut the presumption that the

appellant was adequately represented during the critical 30-day period after

conviction. Id.




                                        16
      If the presumption of effective representation is successfully rebutted, we

move to a harm analysis in which we determine whether the appellant had any

“facially plausible claims” that would have been appropriately presented in a

motion for new trial. Id. at 911–12 (holding that appellate counsel’s conclusory

allegation that trial counsel failed to call a witness and conduct an investigation

did not establish a facially plausible claim of ineffective assistance). But see

Prudhomme v. State, 28 S.W.3d 114, 121 (Tex. App.—Texarkana 2000, no pet.)

(remanding for out-of-time motion for new trial to address claim that defendant’s

guilty plea was involuntary because of trial counsel’s erroneous advice);

Massingill v. State, 8 S.W.3d 733, 738 (Tex. App.—Austin 1999, no pet.) (same).

      C. Appellant’s request for an abatement

      Appellant has reiterated in his brief his request for an abatement in order to

file an out-of-time motion for new trial, but he has failed to rebut the presumption

that he was provided effective assistance during the 30 days following his

sentencing. He has provided no evidence to rebut the inference that he and

defense counsel discussed the possibility of filing a motion for new trial and

Appellant rejected the idea. See Oldham, 977 S.W.2d at 363 (“When a motion

for new trial is not filed in a case, the rebuttable presumption is that it was

considered by the appellant and rejected.”). In a reply brief, Appellant’s counsel

takes issue with this reasoning and points out that Appellant was in prison by the

time the clerk’s and reporter’s records were made available, but we fail to see

how that fact should make any difference in our analysis.


                                        17
      Without evidence indicating that Appellant did not consider and reject the

possibility of filing a motion for new trial, it is not our place to second-guess his

decision or that of his trial counsel. See State v. Morales, 253 S.W.3d 686, 696–

97 (Tex. Crim. App. 2008) (“[R]eviewing courts must not second-guess legitimate

strategic or tactical decisions made by trial counsel in the midst of trial, but

instead ‘must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance[.]’” (quoting Strickland v.

Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984))).                 Because

Appellant has not rebutted the presumption that he was provided effective

assistance after sentencing, we overrule Appellant’s second point without

evaluating the facial plausibility of his claims for ineffective assistance.

      D. Appellant’s constitutional arguments

      Due process guarantees a criminal defendant a fair trial, defined in part by

the right to effective assistance of counsel. Strickland, 466 U.S. at 684–85, 104

S. Ct. at 2063. Appellant posits that the deadline for filing a motion for new trial

acts to deny similarly-situated indigent defendants of their rights to counsel in the

critical 30-day period following sentencing because (1) if appointed trial counsel

remains on the case, he is unlikely to identify his own ineffective assistance and

(2) if new counsel is appointed for the appeal, that new counsel will not be able to

identify instances of ineffective assistance until he has received the record, which

is generally not prepared until after the 30-day deadline to file a motion for new

trial has passed.


                                          18
      Appellant acknowledges but dismisses two of the options available to

defendants in such a situation. First, an appellant may seek an abatement of his

appeal in order to file an out-of-time motion for new trial. Tex. R. App. P. 2;

Cooks, 240 S.W.3d at 911. Appellant complains that we are “loathe” to do so

and that our denial of his request in this case violated his rights to due process,

counsel, and a fair trial. See U.S. Const. Amends. V, VI, XIV. But as we have

discussed above, Appellant failed to meet his burden to rebut the presumption

that he was rendered ineffective assistance of counsel during the 30 days

following sentencing and the inference that he and defense counsel considered

the appellate options, including the filing of a motion for new trial, and decided

not to.   See Cooks, 240 S.W.3d at 911; Oldham, 977 S.W.2d at 363.               We

therefore disagree with Appellant’s unsupported assertion that our denial of his

request violated his constitutional rights.

      Appellant is now left with the option to pursue and develop his claims for

ineffective assistance of counsel through a habeas corpus proceeding, but he

argues that it is an inadequate remedy because he will not be entitled to the

assistance of counsel in filing such an application. See Tex. Code Crim. Proc.

Ann. art. 11.07 (West 2015) (providing procedure for an application for writ of

habeas corpus after a felony conviction without a death sentence); Ex parte

Graves, 70 S.W.3d 103, 110 (Tex. Crim. App. 2002) (recognizing the well-

established principle of federal and state law that there is no right to counsel on a

writ of habeas corpus). But even though Appellant is not guaranteed assistance


                                          19
of counsel in filing an application, the trial court is required to appoint counsel on

habeas if the trial judge determines that the interests of justice require it. Tex.

Code Crim. Proc. Ann. arts. 1.051(c), 26.04(c) (West Supp. 2017); Ex parte

Garcia, 486 S.W.3d 565, 565–66 (Tex. Crim. App. 2016) (mem. op.) (Keller, P.J.,

concurring).    Additionally, understanding the inherent difficulty of properly

presenting legal claims, courts are to liberally construe pro se pleadings,

including habeas applications. See Garcia, 486 S.W.3d at 566 (“We do not reject

a claim just because it is inartfully worded or imperfectly pled.”) (Keller, P.J.,

concurring); see also Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75, 78 n.3

(Tex. App.—Texarkana 2008, pet. denied) (“We review and evaluate pro se

pleadings with liberality and patience[.]”).

      For these reasons, we disagree with Appellant’s assertion that the 30-day

deadline to file a motion for new trial acted to deny him of his constitutional rights.

We therefore overrule his first point.

II. Outcry testimony

      In his third point, Appellant argues that the trial court abused its discretion

by admitting Stepsister’s outcry testimony because (1) it exceeded the scope of

the State’s notice of outcry testimony and (2) it duplicated Mother’s outcry

testimony.

      In the prosecution of certain sex crimes, article 38.072 permits the

admission of statements that describe the alleged offense that (1) were made by

the child against whom the offense was allegedly committed and (2) were made


                                          20
to the first adult, other than the defendant, to whom the child made a statement

about the offense. Tex. Code Crim. Proc. Ann. art. 38.072 § 2(a)(1)(A), (2), (3)

(West Supp. 2017). Such statements are not considered inadmissible hearsay if

(1) at least two weeks before trial, the party intending to offer the statement

notifies the adverse party of its intention to do so and provides the adverse party

with the witness’s name and a written summary of the statement; (2) the trial

court holds a hearing outside the presence of the jury and finds that the

statement is reliable based on the time, content, and circumstances of the

statement; and (3) the child is available to testify. Id. art. 38.072 § 2(b).

      Trial courts are afforded broad discretion in determining the admissibility of

outcry testimony. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).

We will not disturb the trial court’s evidentiary rulings unless a clear abuse of

discretion is demonstrated in the record. Id. at 92.

      A. Relevant facts

      In a September 2016 filing, the State notified Appellant of its intent to

present Stepsister’s testimony to A.B.’s outcry. The State attached a handwritten

statement by Stepsister that read as follows:

      I talk to [A.B.] in feb that when she told me that [Appellant] has been
      sexually abusing her. She told me that he touched her everywhere
      on her body on chest, on her back, legs her vegina [sic] and also he
      did try once to have intercourse but is was hurting her so it didn’t
      happen. I asked her couple times that are you telling me the truth
      that you guy never had intercourse and she said it never happened
      he tried but never happened. She was really upset coz she told me
      that he has been doing this for couple years. I think for good three
      years. also he did use to have her sit on his laps and use to show


                                          21
      her porn on computer while doing this he used to touch her every
      where. I asked her why she never told any of us so she told me
      beacuse [sic] she was scared that everyone will blame her coz that
      what he told her.

      During trial but outside the presence of the jury, the trial court conducted a

hearing to determine if Stepsister’s outcry testimony was admissible under article

38.072.   See Tex. Code Crim. Proc. Ann. art. 38.072.         During the hearing,

Stepsister testified that A.B. called her a couple days before Stepbrother’s

wedding and told her about the abuse. Stepsister testified that A.B. told her that

the abuse started with “some ball game” when A.B. was 10 and then Appellant

showed A.B. pornography and started touching her everywhere—her breast, her

private area, “pretty much all over the body”—and that Appellant tried to have

sex with A.B. one time but backed off when it started to hurt A.B. Stepsister also

reported that A.B. told her Appellant would bend her over and rub his private part

against her.

      Appellant’s counsel argued that Stepsister’s testimony was inadmissible

hearsay because it was not specific enough—in his view, it did not clearly

establish when the abuse occurred or what kind of touching took place—and

because Mother had already testified to A.B.’s outcry regarding Appellant’s

inappropriate touching. Additionally, he argued that Stepsister’s outcry testimony

exceeded the State’s notice because she testified that the abuse started when

A.B. was 10, whereas the notice only stated that A.B. told her the abuse had




                                        22
been going on for “a couple of years” or “a good three years.” The trial court

overruled Appellant’s objections and allowed Stepsister to testify to A.B.’s outcry.

      B. The State’s notice of Stepsister’s testimony

      Here, Appellant argues that Stepsister’s outcry testimony exceeded the

scope of the State’s notice because Stepsister testified that (1) the sexual abuse

started during a ball game, (2) he touched A.B. under her clothes, (3) he would

bend A.B. over and rub his private part against her, and (4) the abuse started

when A.B. was 10 years old. But Appellant has failed to preserve the first three

arguments for our review by failing to present them to the trial court. See Tex. R.

App. P. 33.1 (requiring a party to present to the trial court a timely request,

objection, or motion that states the specific grounds for the desired ruling in order

to preserve a complaint for our review). We therefore overrule those portions of

Appellant’s third point and limit our review to whether Stepsister’s statement that

A.B. told her the abuse began when A.B. was 10 exceeded the scope of the

notice and was therefore inadmissible.

      The purpose of the notice requirement is to avoid surprising the defendant

with the introduction of outcry hearsay testimony. Owens v. State, 381 S.W.3d

696, 703 (Tex. App.—Texarkana 2012, no pet.) (citing Gay v. State, 981 S.W.2d

864, 866 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)). The written summary

must give adequate notice of the content and scope of the outcry testimony; in

other words, it must reasonably inform the defendant of the essential facts




                                         23
related in the outcry statement. Id. (citing Davidson v. State, 80 S.W.3d 132, 136

(Tex. App.—Texarkana 2002, pet. ref’d)).

      Even if we were to hold that Stepsister’s testimony that A.B. told her the

abuse began at 10 years old exceeded the scope of the State’s notice, any error

in admitting the testimony was harmless. We would only reverse such error if it

affected a substantial right of the appellant—in other words, if it had a substantial

and injurious effect or influence on the jury’s verdict.     See Tex. R. App. P.

44.2(b); Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253

(1946). In determining whether a faulty notice of outcry testimony is harmless

error, courts have looked to whether the defendant was actually surprised by the

outcry evidence. See, e.g., Patterson v. State, Nos. 02-10-00350-CR, 02-10-

00351-CR, 2012 WL 171115, at *8 (Tex. App.—Fort Worth Jan. 19, 2012, no

pet.) (mem. op., not designated for publication); Gabriel v. State, 973 S.W.2d

715, 720 (Tex. App.—Waco 1998, no pet.).

      On appeal, Appellant does not explain how he was surprised by

Stepsister’s testimony that A.B. claimed the abuse began when she was 10, but

at trial, Appellant’s counsel argued that the State’s notice left open a 15-year

window in which the abuse could have occurred—from A.B.’s birth to the time

she outcried. But this argument ignores the undisputed evidence that Appellant

did not move to the United States and into A.B.’s apartment until A.B. was 10.

Additionally, A.B. herself testified that the abuse began when she was 10 years

old. See Moody v. State, No. 11-15-00087-CR, 2017 WL 3574271, at *3 (Tex.


                                         24
App.—Eastland Aug. 17, 2017, pet. ref’d) (mem. op.) (holding that, even if outcry

testimony was erroneously admitted, such error was harmless where the

complainant testified without objection to the same facts); Allen v. State, 436

S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d) (holding erroneous

admission of outcry testimony was harmless where the complainant testified to

the same facts, was available for cross-examination, and her testimony alone

was enough to support the conviction). We fail to see how Stepsister’s testimony

could have surprised Appellant and therefore overrule Appellant’s third point as it

relates to the State’s notice of Stepsister’s outcry testimony.

      C. Duplication of Mother’s testimony

      In the second portion of his third point, Appellant argues that the trial court

erred by allowing Stepsister to testify to A.B.’s statement that Appellant touched

her on her breasts, between her legs, and on her behind because the trial court

had already allowed Mother to testify to the same statement by A.B.

      Under article 38.072, a proper outcry witness is the first adult to whom the

child spoke about the abuse “in some discernable manner.” Lopez v. State, 343

S.W.3d 137, 140 (Tex. Crim. App. 2011) (discussing Tex. Code Crim. Proc. Ann.

art. 38.072.) The child’s statements must be more than “a general allusion that

something in the area of child abuse is going on.” Id. (citing Garcia, 792 S.W.2d

at 91). Outcry statements are event-specific, not person-specific, so multiple

outcry witnesses may testify if each of them testifies to a different event. Id.;




                                         25
Hines v. State, No. 02-15-00468-CR, 2017 WL 1738022, at *7 (Tex. App.—Fort

Worth May 4, 2017, no pet.).

      The State seems to argue that Mother’s outcry testimony was not actually

outcry testimony because it did not describe an “actual discernable offense”

because more evidence was necessary to show that Appellant touched A.B. with

the intent to arouse or gratify his sexual desire. 6 But this argument removes

Mother’s statement from the context in which it was made—having become upset

at A.B. for having a romantic relationship without Mother’s permission, A.B.

accused her Mother of allowing Appellant to abuse her by touching her private

areas. Intent is almost always shown through circumstantial evidence. Hart v.

State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct evidence of the requisite

intent is not required . . . .”); Edwards v. State, 497 S.W.3d 147, 157 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d). We disagree with the State’s argument.

      But even assuming, without holding, that the trial court erred by admitting

Stepsister’s testimony that A.B. told her Appellant touched her breasts, between

her legs, and on her behind, any such error was harmless. See Tex. R. App. P.

44.2(b); Kotteakos, 328 U.S. 750 at 776, 66 S. Ct. at 1253. A.B. testified to the

timeline of Appellant’s continuous sexual abuse of her that began when he

moved into her apartment when she was 10 years old. She testified in detail to

multiple instances of inappropriate touching over the years, his showing her

      6
       We note that if the testimony was not admissible as outcry testimony, it
was likely inadmissible hearsay.


                                        26
pornography online, his actions in “dry-humping” her and rubbing his penis

against her body, and his attempt to have sex with her. The jury also heard

Mother, Stepfather, and Stepsister testify to Appellant’s acknowledgments of the

abuse and his requests for forgiveness from God. We do not view any error in

admitting Stepsister’s outcry testimony as substantially swaying the jury in

assessing guilt. See Elder v. State, 132 S.W.3d 20, 28 (Tex. App.—Fort Worth

2004) (holding that erroneous admission of outcry testimony was harmless where

it was the same or similar to testimony admitted through several other

witnesses), cert. denied, 544 U.S. 925 (2005); Allen, 436 S.W.3d at 822. We

therefore overrule the remainder of Appellant’s third point.

                                   Conclusion

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

judgment.

                                                   /s/ Bonnie Sudderth

                                                   BONNIE SUDDERTH
                                                   CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 15, 2018




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