      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00366-CR



                                  Ryan Joseph Sylvia, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 64476, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The trial court convicted appellant Ryan Sylvia of indecency with a child, see Tex.

Penal Code Ann. § 21.11(a)(1) (West 2003), and sentenced him to fifteen years’ imprisonment.

Sylvia appeals, asserting that (1) he was denied effective assistance of counsel and (2) he was

deprived of his constitutional right to counsel when defense counsel left the courtroom while the trial

court viewed videotaped interviews that had been admitted into evidence. We affirm the trial

court’s judgment.


                                         BACKGROUND

               Sylvia was indicted for indecency with a child stemming from allegations by his

step-daughter, K.W., that he forced her to touch his penis with her hands. Sylvia waived his right

to a jury trial and a bench trial was held. K.W., who was eleven years old at the time of trial,

testified that Sylvia put her hand on his penis while Sylvia was giving her a bath. K.W. and her older
sister, R.B., who was in eleventh grade at the time of trial, both testified that they shared a bedroom

and that, on several occasions, Sylvia entered their bedroom wearing only boxer shorts with his penis

exposed. R.B. testified that when she asked Sylvia to “fix himself,” he would reply, “My bad, it was

an accident.” Shannan Sylvia, who is K.W. and R.B.’s mother and Sylvia’s wife, testified that she

does not believe her children’s outcries because she does not believe Sylvia would hurt her children.1

                After calling several witnesses, including K.W. and Shannan, the State offered State’s

exhibits 4 and 5, DVD video recordings of interviews of K.W. and R.B. conducted by the Children’s

Advocacy Center (the “CAC interviews”).2 Defense counsel’s only objection to the interviews was

a request that the court require R.B. to testify, as she had not yet taken the stand. After the State

indicated that it intended to call R.B. as a witness, defense counsel stated, “Subject to that, Your

Honor, I have no objections.” The trial court admitted the CAC interviews into evidence. The State

then asked that the trial court watch the interviews in open court, at which time the following

exchange took place:


       DEFENSE COUNSEL:                Your Honor, may we be excused while you do this,
                                       while you watch it?

       COURT:                          Do you want to do this in open court[?] . . . State said
                                       they wanted to do it in open court.

       ....

       COURT:                          So you all have to stay unless they want me to take a
                                       break and look at it.

       1
           To avoid confusion, we will refer to Shannan Sylvia by her first name.
       2
          During a pretrial hearing, Sylvia’s defense counsel represented to the trial court that the
parties had “agreed that the CAC interviews can be played at trial.”

                                              2
       DEFENSE COUNSEL:               We said we don’t mind if you look at it in chambers
                                      or wherever you want to look at it. We’ve seen it.

       COURT:                         State, . . . [y]ou all want me to hear this in open court.
                                      I’m going to sit here and watch it.

       STATE:                         We’re going to stay here and watch it. Totally up to
                                      him whether he wants to stay here and watch it. He’s
                                      the one that wanted it in so I would assume that he
                                      wanted to be in here.

       COURT:                         So if you want to take a recess, that’s fine, before I
                                      begin.

       DEFENSE COUNSEL:               I do want to take a recess.

       COURT:                         Alright.

       STATE:                         I think it needs to come from his client also, whether
                                      his client wants to be in here when you watch the tape.

       DEFENSE COUNSEL:               I think he’s already said that he doesn’t care whether
                                      he’s in here or not; is that right?

       DEFENDANT:                     Your Honor, It’s your decision. If you’re allowing me
                                      to step outside and recess, that’s fine. I’ve watched
                                      the interview several times. . . . I’m well aware of the
                                      testimony on those videos.

       COURT:                         All right. Then you may step outside and come back
                                      in when you’re ready and I’ll play this whenever it
                                      turns on.

       DEFENSE COUNSEL:               We’ll be back in a minute, Judge.


The proceeding then went off the record from 10:03 a.m. to 11:43 a.m. When the proceeding came

back on the record, the trial judge announced that, while viewing the CAC interviews on the

computer at the bench, she ran into technical difficulties and had viewed one interview but could not



                                                 3
finish watching the second. The trial court then requested that the State continue with its

presentation of evidence, as it would take time to “swap out” the court’s computers. The State

continued by calling additional witnesses, including R.B., a police officer involved in the case, and

K.W.’s therapist.3 The defense called K.W., Shannan, Shannan’s son J.B., and several of Shannan

and Sylvia’s neighbors as witnesses.

                 In Sylvia’s closing argument, defense counsel made several references to both R.B.’s

and K.W.’s CAC interviews. He argued that R.B.’s interview provided evidence that R.B. hated

Sylvia and resented having to babysit her siblings. He further asserted that both K.W.’s and R.B.’s

testimony at trial was inconsistent with their statements in the CAC interviews. He claimed that, “in

the CAC video, both girls said that [Sylvia’s exposing himself] had been going on for a long time

but in their testimonies it only happened twice” and that, “in the CAC video [K.W.] said she held

[Sylvia’s] private part for 14 minutes. But in her testimony before this court . . . it was down to

. . . five seconds.”

                 The trial court found Sylvia guilty and sentenced him to fifteen years’ imprisonment.4

Sylvia’s defense counsel subsequently filed a motion for new trial and notice of appeal. Sylvia then

retained a new attorney, who filed an amended motion for new trial in which he argued that Sylvia




        3
         During the testimony of K.W.’s therapist, defense counsel made a running objection to
“any opinion . . . that [K.W.] was sexually abused.”
        4
            Sylvia does not challenge the sufficiency of the evidence supporting this conviction.

                                                   4
was denied effective assistance of counsel. Sylvia’s defense counsel submitted an affidavit in

response to Sylvia’s amended motion for new trial, replying to Sylvia’s allegations.5

                  At the hearing on the amended motion, defense counsel testified and was subject to

substantial cross-examination by Sylvia’s new counsel. Defense counsel testified that prior to this

criminal trial, he represented Sylvia and Shannan in the related civil parental-rights termination

proceeding, that he was not the first attorney to represent Sylvia and Shannan in that matter, and that

he obtained the CAC interviews from Sylvia, who had received them from one of his prior attorneys.

The trial court also stated at the hearing that she did not recall any conversation occurring during the

period off the record except a discussion of the technical difficulties with her computer. Following

the hearing, the trial court denied Sylvia’s amended motion.

                  Sylvia now appeals, claiming (1) that defense counsel provided ineffective assistance

for leaving the courtroom during the viewing of the CAC interviews, failing to object to the

admission of the CAC interviews, and failing to realize the limited scope of the running objection

made during the testimony of K.W.’s therapist, and (2) that his constitutional right to counsel was

violated by defense counsel when defense counsel left the courtroom, and by the trial court when the

trial court failed to obtain a waiver of Sylvia’s right to counsel before permitting defense

counsel’s exit.




        5
          For the purpose of this opinion, “defense counsel” has and will continue to refer only to
Sylvia’s counsel at trial, and not to counsel who represented him at the hearing on his amended
motion for new trial and on appeal.

                                                    5
                                    STANDARD OF REVIEW

               Though Sylvia does not directly frame his appeal as an appeal from the trial court’s

denial of his amended motion for new trial, because the trial court has already denied the merits of

his ineffective assistance claim, we must consider his arguments in light of that ruling. We review

a trial court’s denial of a motion for new trial for an abuse of discretion. Charles v. State,

146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Accordingly, when analyzing the trial court’s

decision to deny a new trial based on ineffective assistance of counsel, we view the relevant

legal standards through the prism of an abuse-of-discretion standard. See Ramirez v. State,

301 S.W.3d 410, 415 (Tex. App.—Austin 2009, no pet.). We do not substitute our judgment for that

of the trial court; rather we decide whether the trial court’s decision was arbitrary or unreasonable.

Charles, 146 S.W.3d at 208. We must view the evidence in the light most favorable to the trial

court’s ruling and presume that all reasonable factual findings that could have been made against the

losing party were so made. Id. Thus, a trial court abuses its discretion in denying a motion for new

trial only when no reasonable view of the record could support the trial court’s ruling. Id.

               To prevail on a claim of ineffective assistance of counsel, a defendant must show by

a preponderance of the evidence that (1) counsel’s representation fell below an objective standard

of reasonableness under the prevailing professional norms, and (2) the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986). An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong. Garcia v. State, 57 S.W.3d 436,

440 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at 697). To prove prejudice, a defendant



                                                  6
must show that there is a reasonable probability, or a probability sufficient to undermine confidence

in the outcome, that the result of the proceeding would have been different. Strickland, 466 U.S. at

687. “It is not enough for the defendant to show that the errors had some conceivable effect on the

outcome of the proceeding.” Id. at 693. Rather, he must show that “there is a reasonable probability

that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

                An appellate court must make a “strong presumption that counsel’s performance fell

within the wide range of reasonably professional assistance.” Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689). In order for an appellate court to

find that counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial

record; the court must not engage in retroactive speculation. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). When direct evidence of ineffectiveness is not available, we will assume

that counsel had a strategy if any reasonably sound strategic motivation can be imagined. Garcia,

57 S.W.3d at 440. The record on direct appeal will only in rare circumstances be adequate to show

that counsel’s performance fell below an objectively reasonable standard of performance. See

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (indicating that claims of ineffective

assistance of counsel are normally best left for habeas corpus proceedings); see also Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (“Under normal circumstances, the record on direct

appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking

in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was

reasonable and professional.”). The record in this case, however, is more developed on direct appeal




                                                   7
because of the hearing held on Sylvia’s amended motion for new trial. The hearing featured

testimony of defense counsel, as well as his affidavit and a statement by the trial court.


                                            DISCUSSION

                In his first point on appeal, Sylvia argues that defense counsel rendered ineffective

assistance of counsel by (1) leaving the courtroom with Sylvia while the trial court watched the CAC

interviews, (2) failing to object to the admission of the CAC interviews, and (3) failing to realize that

his running objection to the testimony of K.W.’s therapist did not extend to R.B.’s claims of abuse.

                Sylvia first alleges that his defense counsel provided ineffective assistance by

excusing himself and Sylvia from the courtroom while the trial court viewed the CAC interviews.

Sylvia argues that the record “affords no great confidence that nothing happened as to which

Appellant wouldn’t have been better protected had he and his attorney been present in the courtroom

when the tapes were being played.” Lack of confidence, however, is not the standard. Instead, it was

Sylvia’s burden to prove that the outcome of the proceeding would probably have been different had

defense counsel remained in the courtroom. See Strickland, 466 U.S. at 687.

                The record reflects that defense counsel agreed during a pretrial hearing that the

interviews would be entered into evidence. At the time defense counsel requested a recess, he

indicated that he “didn’t mind” if the court looked at the interviews “in chambers or wherever you

want to look at it. We’ve seen it.” Sylvia, when asked, agreed, stating, “If you’re allowing me to

step outside and recess, that’s fine. I’ve watched the interview several times. . . . I’m well aware of

the testimony on those videos.” The proceedings then went off the record for one hour and forty

minutes. The record does not indicate, however, for what portion of that time defense counsel and

                                                   8
Sylvia were out of the courtroom. Further, Sylvia presented no evidence, either in his amended

motion for new trial or at the hearing on that motion, that defense counsel’s absence prejudiced

Sylvia in any discernible way. At the hearing on the amended motion for new trial, the trial court

represented that the only discussion that occurred during the period off the record was in response

to the technical difficulties while viewing the interviews. The record contains no indication that the

State and trial court exchanged any substantive discussion during defense counsel’s absence. On this

record, we cannot say that the trial court abused its discretion in failing to find that defense counsel’s

leaving the courtroom was ineffective assistance requiring a new trial. Id.

                Sylvia next argues that defense counsel’s failure to object to the admission of the

CAC interviews, other than his request that R.B. testify, constituted ineffective assistance of counsel.

An allegation of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Bone, 77 S.W.3d at 835. Sylvia has provided

no evidence or argument to rebut the strong presumption that defense counsel’s actions were within

the wide range of reasonably professional assistance. Robertson, 187 S.W.3d at 483.

                Instead, the record suggests that defense counsel intended that the CAC interviews

be admitted into evidence for the purpose of impeaching K.W.’s and R.B.’s testimony at trial. Not

only did counsel enter into a pretrial agreement that the interviews be admitted—indicating that

defense counsel’s failure to object was a conscious strategy rather than an oversight—he also

referred to the interviews in his closing argument, identifying inconsistencies between K.W.’s and

R.B.’s testimony at trial and their statements during the videotaped interviews. At the hearing on

the amended motion for new trial, defense counsel testified that K.W. and R.B. came across as



                                                    9
credible witnesses when they testified at the civil termination trial. He further testified that he took

their credibility into consideration when preparing for the criminal trial. Because admitting the

interviews for the purpose of impeachment constitutes a reasonably sound strategic motivation, the

trial court did not abuse its discretion in concluding that defense counsel’s failure to object was

reasonably effective assistance of counsel.

                Sylvia next argues that defense counsel provided ineffective assistance by failing to

realize that the running objection he requested during the testimony of K.W.’s therapist constituted

an objection only to K.W.’s claims against Sylvia, and did not extend to allegations by R.B. Defense

counsel made a running objection during the testimony of K.W.’s therapist to “any opinion that

[K.W.’s therapist] has that [K.W.] was sexually abused.” The record contains no indication that

defense counsel misinterpreted this running objection to believe that it covered sexual-abuse claims

by R.B. or that defense counsel intended the objection to have such a broad scope. Further, the

therapist made no mention of R.B. during her testimony. Thus, even had Sylvia proven that defense

counsel erred, it did not prejudice Sylvia’s defense.

                Within this running-objection argument, Sylvia further challenges defense counsel’s

general failure to object to the admission of extraneous-offense testimony. Sylvia claims that

defense counsel should have objected to both Shannan’s testimony at a bond-reduction hearing

stating that Sylvia had physically assaulted a neighbor and the trial testimony of a police officer and

a CPS investigator stating that R.B. made allegations against Sylvia similar to those made by K.W.6


       6
          Sylvia also claims that defense counsel allowed the court to learn about an incident
involving Sylvia’s younger sister for which Sylvia served time in juvenile detention from Shannan’s
testimony at the bond-reduction hearing. He fails to explain how testimony at a bond-reduction

                                                  10
Sylvia does little more, however, than list items of testimony that, in hindsight, he believes should

have been objected to. Additionally, Sylvia fails to prove that the trial’s outcome would have been

different without this evidence. Even without any evidence of extraneous acts, the trial court heard

testimony from K.W. that Sylvia made her touch his penis and that he exposed himself in her

presence on more than one occasion. Given this testimony, we cannot conclude that the trial court

abused its discretion by finding that Sylvia did not prove the Strickland elements. 466 U.S. at 687.

               To the extent Sylvia argues that defense counsel was ineffective based on “other

failures . . . denominated” in his brief, we conclude that these arguments were waived for inadequate

briefing. See Tex. R. App. P. 38.1(i) (appellant’s brief must state concisely all issues or points

presented for review). Sylvia’s first issue is overruled.

               In his second issue on appeal, Sylvia argues that defense counsel’s leaving the

courtroom while the trial court viewed the CAC interviews constituted a constructive denial of

Sylvia’s Sixth and Fourteenth Amendment rights to counsel. See U.S. Const. amends. VI, XIV.

Similarly, Sylvia claims in his third issue on appeal that the trial court violated his constitutional

right to counsel by permitting defense counsel to excuse himself without first obtaining a waiver of

Sylvia’s right to counsel. In order to prove complete denial of the right to counsel and bypass the

Strickland prejudice test, as Sylvia attempts to do here, a defendant must show that counsel was

absent during a “critical stage” of the proceeding. United States v. Cronic, 466 U.S. 648, 659 (1984).




hearing could be the basis for reversing his guilt/innocence judgment.

        Sylvia also challenges defense counsel’s failure to object to R.B.’s statement during her CAC
interview that Sylvia had been in “juvey.”

                                                 11
                Sylvia presents no argument as to why the viewing of the CAC interviews constituted

a “critical stage” of the proceedings. Further, while courts “have struggled to define the ‘critical’

stages of trial,” United States v. Russell, 205 F.3d 768, 771 (5th Cir. 2000), the present facts compare

unfavorably to those instances when counsel have been considered absent at critical times. For

example, in Belcher v. State, 93 S.W.3d 593, 599 (Tex. App.—Houston [14th Dist.] 2002, pet.

dism’d), a stage when the trial court repeatedly attempted to engage the defense in a dialogue on its

motion for new trial, through which counsel sat as silent and unresponsive as if he were absent

entirely, was held to be critical. And in Russell, an attorney missed two full days of witness

testimony concerning the conspiracy in which his client allegedly took part. In reversing that

conviction, the Fifth Circuit acknowledged that only “a denial of such significance that it makes the

adversary process itself unreliable” along with “surrounding circumstances [that] justify a

presumption of ineffectiveness” warrant a decision to require no showing of prejudice. Russell,

205 F.3d at 771.

                The differences between these cases and Sylvia’s are significant. For one thing, before

the court commenced watching the CAC interview tapes, they had already been admitted as evidence

pursuant to an agreement sought by Sylvia. No evidence was therefore taken, nor was any exchange

between the judge and counsel for either side attempted, outside the presence of Sylvia’s counsel.

The State is right to conclude that the court’s chosen manner of watching the tapes was no more a

critical stage of trial than if it had decided to review them alone in chambers at some other point in

time, for which Sylvia and his counsel could certainly allege no need to be present.




                                                  12
               As a consequence, Sylvia’s deprivation of counsel claims are subject to the Strickland

analysis for prejudice. Because we have concluded that Sylvia failed to prove that defense counsel’s

absence from the courtroom prejudiced his defense, Sylvia’s second and third issues are overruled.


                                         CONCLUSION

               Having overruled all of Sylvia’s issues on appeal, we affirm the trial court’s

judgment.



                                              ______________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: September 29, 2011

Do Not Publish




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