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                                   MEMORANDUM OPINION

                                          No. 04-08-00591-CR

                                        William C. SCHILLING,
                                               Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2006-CR-7994
                               Honorable Sid L. Harle, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice, concurring in the judgment only

Delivered and Filed: September 2, 2009

AFFIRMED

           William Schilling appeals his convictions for four counts of indecency with a child by contact

and six counts of aggravated sexual assault of a child. The jury assessed Schilling’s punishment at

20 years confinement for each count of indecency with a child by contact and 50 years confinement

for each count of aggravated sexual assault of a child. On appeal, Schilling claims: (1) the trial court

erred in denying his motion for directed verdict; (2) the evidence is factually insufficient to support
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any of his convictions; (3) arguments by the prosecutor during the punishment stage of the trial

deprived him of a fair and impartial punishment proceeding; (4) he is entitled to a new trial because

the State failed to disclose evidence favorable to him; and (5) he was denied effective assistance of

counsel. We affirm the trial court’s judgment.

                                                   BACKGROUND

         Schilling and Debbie S. married in 1994, and had one child together on February 2, 1996,

Kayla.1 When the couple married, Debbie already had two children from a prior relationship, Cody

and the complainant, B.S. Schilling legally adopted Cody and B.S. in 1996. In April 2004, Schilling

and Debbie separated after approximately 10 years of marriage.

         Trial testimony indicated that when the couple separated, Schilling began having

inappropriate sexual contact with B.S. Over the course of two years, Schilling touched B.S.’s private

parts on multiple occasions, and engaged in vaginal, oral, and anal sex with the child numerous

times. Child Protective Services (“CPS”) began investigating Schilling in February 2006 after

receiving an anonymous tip that Schilling was sexually abusing B.S.

         CPS investigators spoke with B.S. to determine whether Schilling was sexually abusing her,

but B.S. denied any inappropriate contact with Schilling. CPS placed B.S. and her siblings in the

care of Schilling’s mother pending the results of its investigation. After about a week in Schilling’s

mother’s care, Debbie came and took her children from Schilling’s mother. B.S. made an outcry of

abuse against Schilling following Debbie’s removal of the children from Schilling’s mother.




         1
          … To protect the privacy of the parties in this case, we identify the complainant by her initials and her mother
and siblings by their first names only.

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        B.S. underwent a sexual assault examination, and she reported to the examiner that Schilling

had been sexually abusing her for well over a year. Schilling was subsequently indicted for

committing indecency with a child by contact and aggravated sexual assault of a child. He pleaded

not guilty and proceeded to a jury trial. The jury found Schilling guilty of four counts of indecency

with a child by contact and six counts of aggravated sexual assault of a child. Schilling was

sentenced to 20 years confinement for each count of indecency with a child by contact and 50 years

confinement for each count of aggravated sexual assault of a child, with the sentences to run

concurrently. The trial court denied Schilling’s motion for new trial, and this appeal followed.

                                  SUFFICIENCY OF THE EVIDENCE

        Schilling claims the trial court erred in denying his motion for directed verdict as to Count

VI of the indictment, which alleged he intentionally and knowingly caused the female sexual

organ of B.S. to contact his mouth on or about August 30, 2004. See TEX . PENAL CODE ANN .

§ 22.021(a)(1)(B)(iii), (2)(B) (Vernon 2003) (providing a person commits aggravated sexual assault

of a child if he intentionally or knowingly causes the sexual organ of a child to contact or penetrate

the mouth, anus, or sexual organ of another person, including the actor, and the child is younger than

fourteen years of age). A complaint about a trial court’s failure to grant a motion for directed verdict

is a challenge to the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 (Tex.

Crim. App. 2003). When reviewing the legal sufficiency of the evidence, we consider whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “This

standard accounts for the factfinder’s duty ‘to resolve conflicts in the testimony, to weigh the


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evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Clayton, 235

S.W.3d at 778 (quoting Jackson, 443 U.S. at 319). Thus, “in analyzing legal sufficiency, we

‘determine whether the necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict.’” Id. An appellate

court’s “review of ‘all of the evidence’ includes evidence that was properly and improperly

admitted.” Id.

       Schilling argues B.S. failed to provide any testimony regarding the touching of his mouth to

any part of her sexual organ as was required by Count VI of the indictment. He notes that B.S.

testified at length about the various instances of sexual abuse he purportedly committed, but

provided no testimony suggesting he contacted her sexual organ with his mouth at any time.

Although the jury may not have heard B.S. provide any direct testimony as to the touching of

Schilling’s mouth to her sexual organ, the jury did hear testimony from Dr. Nancy Kellogg, a

pediatrician and the medical director for ChildSafe, indicating such contact occurred. Dr. Kellogg

indicated B.S. complained of the specific sexual contact alleged in Count VI of the indictment during

B.S.’s sexual assault examination following her outcry. Dr. Kellogg noted B.S. reported during her

examination that Schilling made her have sex with him and that “[h]is bottom private area . . .

touched [her] bottom private area . . . inside.” When B.S. was asked during her examination whether

Schilling had contacted her “anywhere else,” B.S. responded that Schilling had also used his fingers

and mouth to contact her vagina as well. A rational trier of fact could determine Schilling committed

the offense alleged in Count VI of the indictment based upon Dr. Kellogg’s testimony alone. Thus,

after reviewing all the evidence in the light most favorable to the prosecution, we conclude a rational




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jury could have found beyond a reasonable doubt that Schilling committed aggravated sexual assault

as alleged in Count VI of the indictment. Schilling’s second issue is overruled.

       Schilling also argues the evidence is factually insufficient to support any of his convictions.

When considering a factual sufficiency challenge, we look at the evidence in a neutral light giving

almost complete deference to the jury’s determinations of credibility. Lancon v. State, 253 S.W.3d

699, 705 (Tex. Crim. App. 2008). We reverse only if the evidence supporting the verdict is so weak

that the verdict seems clearly wrong and manifestly unjust or if the evidence supporting the verdict

is outweighed by the great weight and preponderance of the available evidence. Watson v. State, 204

S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

       According to Schilling, the evidence is factually insufficient to support the jury’s verdict on

all counts because B.S.’s trial testimony was inconsistent and unreliable. In support of his contention

that B.S.’s testimony was inconsistent and unreliable, Schilling cites B.S.’s conflicting testimony

concerning the details and dates of her sexual encounters with him. He also points out that the jury

heard testimony indicating B.S. had a poor reputation for honesty, and notes that B.S. allegedly told

several individuals he had not abused her. Lastly, Schilling directs our attention to the fact that

B.S.’s hymen was still intact despite allegedly having sexual intercourse with him multiple times.

       In the instant case, B.S. provided detailed testimony concerning Schilling’s abuse, including

testimony indicating Schilling touched her private parts and engaged in intercourse with her on

multiple occasions. The jury was in the best position to evaluate the credibility of the witnesses and

was entitled to resolve any credibility issues against Schilling. See Lancon, 253 S.W.3d at 705; see

also Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.—San Antonio 2005, no pet.) (recognizing

the jury evaluates the credibility and demeanor of witnesses and determines the weight afforded


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contradicting testimony). The jury apparently believed B.S.’s testimony concerning Schilling’s

repeated sexual abuse of her, and we must defer to this credibility determination by the factfinder.

When all of the evidence is viewed in a neutral light, we cannot say the jury’s finding is clearly

wrong or manifestly unjust, or that it is against the great weight and preponderance of the evidence.

Schilling’s sixth issue is overruled.

                                   IMPROPER JURY ARGUMENT

       Schilling claims arguments by the prosecutor during the punishment stage of the trial

deprived him of a fair and impartial punishment proceeding. He complains about the following

argument and, in particular, the prosecutor’s statements describing probation as “a joke”:

       And they want to talk to you about probation. Folks, probation [is] a joke.
       Probation means that [Schilling] gets to get to the parking garage before you do
       today. What does it mean? He has to report a couple of times to his probation
       officer[.] He can even phone in occasionally. He can go to the Olive Garden, he can
       go to the movies, he can go anywhere he wants as long as he’s not caught. He gets
       to go to Christmas and family outings and Easter and anything else he wants to do.
       It’s a joke. He gets to walk the streets.

(emphasis added). After the prosecutor’s second statement describing probation as a joke, defense

counsel lodged an objection to the prosecution’s description of probation as a joke.

       Although the prosecutor made two nearly identical statements describing probation as a joke

during his closing argument, defense counsel did not lodge an objection to the first statement made

by the prosecutor. The Texas Rules of Appellate Procedure require that all objections be timely, see

TEX . R. APP . P. 33.1(a)(1), which means the objection must be made at the earliest possible

opportunity. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Defense counsel’s

objection to the second statement by the prosecutor does not satisfy the timeliness requirement of

Rule 33.1(a). See TEX . R. APP . P. 33.1(a)(1); see also Jones v. State, 900 S.W.2d 392, 397 (Tex.


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App.—San Antonio 1995, pet. ref’d) (concluding appellant’s objection to prosecutor’s argument not

timely because he did not object to earlier use of term “sex slave”); Smith v. State, 842 S.W.2d 401,

406 (Tex. App.—Fort Worth 1992, pet. ref’d) (concluding that when prosecutor makes two nearly

identical statements, objection to second statement untimely if defendant does not object to first

statement). Schilling has thus failed to preserve his complaint for appellate review. Even if this

complaint were preserved, the prosecutor’s description of probation as a “joke,” when viewed in

context, is a plea for law enforcement and thus a proper area of argument. See Jackson v. State, 17

S.W.3d 664, 673 (Tex. Crim. App. 2000) (describing plea for law enforcement as one of four general

areas of proper jury argument). Schilling’s third issue is overruled.

                                        BRADY VIOLATION

        Schilling argues he is entitled to a new trial because the State failed to disclose evidence

favorable to him as is required by Brady v. Maryland, 373 U.S. 83 (1963). Schilling’s Brady claim

concerns Child Protective Services records containing information relating to the complainant and

her family, which he alleges would have aided his defense and allowed him to impeach the

credibility of the complainant and her mother at trial. According to Schilling, “[t]he records dumped

on the defense attorneys half way through the trial consisted of more than 200 pages of information

that contradicted almost all of Debbie and [B.S.’s] testimony.” By not having an opportunity to

present the records to the jury, Schilling claims the State “was able to present an untrue picture to

the jury.”

        Under Brady, the suppression by the prosecution of evidence favorable to the defendant

violates due process if the evidence is material either to guilt or punishment, without regard to the

good or bad faith of the prosecution. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).


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When previously withheld evidence is disclosed during the guilt/innocence phase of trial, a

defendant has an opportunity to request a continuance. Schillings v. State, 995 S.W.2d 754, 762

(Tex. App.—San Antonio 1999, no pet.). The defendant’s failure to request a continuance waives

any Brady violation. Id.

       The record indicates that when defense counsel was provided with a copy of the records

during trial, he did not move for a continuance to examine the records. By failing to request a

continuance when the CPS evidence first came to light at trial, Schilling waived any potential Brady

violation he may have had. Schilling’s fourth and fifth issues are overruled.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Lastly, Schilling alleges he received ineffective assistance of counsel. A defendant is entitled

to effective assistance of counsel under both the United States and Texas Constitutions. U.S. CONST .

amend. VI; TEX . CONST . art. I, § 10. The right to effective assistance of counsel does not guarantee

a defendant errorless representation; instead, it affords a defendant an attorney who is reasonably

likely to render effective assistance. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

To establish ineffective assistance of counsel, the appellant must show defense counsel’s assistance

fell below an objective professional standard of reasonableness and counsel’s actions thereby

prejudiced appellant’s defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In order to establish prejudice, an appellant must

show, by a preponderance of the evidence, that “but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998).




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       When reviewing an ineffective assistance claim, “[a]n appellate court looks to the totality of

the representation and the particular circumstances of each case.” Thompson, 9 S.W.3d at 813.

There is a strong presumption that defense counsel’s conduct fell within the wide range of reasonable

professional assistance. Id. To defeat this presumption, the “record must affirmatively demonstrate

the alleged ineffectiveness.” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Direct

appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because

the record is generally undeveloped. Thompson, 9 S.W.3d at 813-14. Moreover, “trial counsel

should ordinarily be afforded an opportunity to explain his actions before being denounced as

ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

       Schilling’s appellate brief lists numerous acts and omissions by defense counsel that he

believes demonstrate counsel’s representation was deficient. For example, Schilling alleges counsel

was deficient in his performance because he: (1) failed to obtain rulings on pretrial motions; (2)

failed to request a continuance to secure additional evidence prior to the start of trial; (3) failed to

object to inadmissible hearsay evidence; (4) failed to call a medical expert during trial; (5) failed to

pose certain questions to the complainant on cross-examination; (6) failed to impeach the

complainant and the complainant’s mother; (7) failed to establish the predicate to offer several

documents into evidence; and (8) exhibited general incompetence. However, the record is silent

as to why counsel made the decisions he made during trial. We are therefore left to speculate as

to defense counsel’s motivation and reasoning during trial, which we may not do. Without

affirmative evidence in the record to overcome the presumption of reasonable assistance, we

must overrule Schilling’s claim of ineffective assistance of counsel. See generally Grant v. State,

No. 13-08-00424-CR, 2009 WL 1361701, *2 (Tex. App.— Corpus Christi 2009, no pet.) (mem. op.,


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not designated for publication) (concluding defense counsel’s failure to present available

impeachment evidence or thoroughly cross-examine the witnesses did not constitute ineffective

assistance where record was silent as to the motivation of counsel’s tactical and strategic decisions);

Garza v. State, No. 01-07-00176-CR, 2008 WL 4837455, *8 (Tex. App.—Houston [1st Dist.] 2008,

no pet.) (mem. op., not designated for publication) (concluding counsel’s failure to establish the

predicate to offer a defense exhibit did not constitute ineffective assistance where there was nothing

in the record to explain counsel’s conduct); Salazar v. State, No. 04-04-00363-CR, 2005 WL

1397142, *6 (Tex. App.—San Antonio 2005, no pet.) (mem. op., not designated for publication)

(concluding counsel’s failure to call witnesses did not constitute ineffective assistance of counsel

because the record was silent as to (1) why counsel chose not to call any witnesses, (2) whether any

uncalled witnesses were available for trial, and (3) whether the witnesses’ testimony would have

benefitted the appellant); Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001, pet.

ref’d) (concluding counsel’s failure to secure rulings on pretrial motions or request a continuance

did not constitute ineffective assistance because record was silent with regard to the reasons for

counsel’s conduct); Ybarra v. State, 890 S.W.2d 98, 113 (Tex. App.—San Antonio 1994, pet. ref’d)

(recognizing the “[f]ailure to object and exclude inadmissible testimony is not necessarily ineffective

assistance of counsel.”). Schilling’s first issue is overruled.

                                            CONCLUSION

       The evidence is legally and factually sufficient to support the convictions and the

jury argument presented by the prosecutor was proper, or if error, not preserved. Additionally, no

Brady violation has been shown, and on this silent record, we cannot say that Schilling




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received ineffective assistance of counsel. Based on the foregoing, the judgment of the trial court

is affirmed.



                                                      Catherine Stone, Chief Justice



DO NOT PUBLISH




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