                                    NO. 07-07-0027-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                    MAY 20, 2008
                           ______________________________

                          SHANE ALLEN MCCOY, APPELLANT

                                              V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

              FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                      NO. 3825; HONORABLE RON ENNS, JUDGE
                         _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Shane Allen McCoy, was convicted of the offenses of aggravated sexual

assault of a child and indecency with a child and sentenced to 25 years confinement and

fine of $500 on the sexual assault count and 10 years confinement and a fine of $500 on

the indecency count. The terms of confinement were to run concurrently. Appellant has

filed his appeal claiming, through four issues, that the trial court committed reversible error

by denying a motion for new trial wherein it was alleged that trial counsel provided
ineffective assistance by failing to call certain specified witnesses who were available at

the time of trial. We affirm.


                                   Factual Background


       Appellant was charged in connection with an incident that occurred while on a family

fishing trip at Lake Meredith. The complaining witness was appellant’s then 12-year-old

step-daughter.   The testimony presented by the State included April Lemming, the

managing interviewer at The Bridge Children’s Advocacy Center. Lemming testified about

the complainant’s statements about the sexual assault at the lake. Lemming further

testified about an incident that complainant told her about that occurred at complainant’s

home when appellant put his hands on complainant’s breasts while sitting on the couch

with her. Through Becky O’Neal, the sexual assault nurse examiner, the State was able

to show that an examination of complainant revealed that complainant’s hymen was torn

and had begun to heal. O’Neal further testified there was no way to tell when the hymen

had been torn, other than by the testimony of complainant. Complainant’s grandmother,

Belen, testified about her suspicions regarding appellant and about a confrontation she had

with him. According to Belen, appellant did not deny the incident, rather, appellent simply

stated he could not remember because he was drunk.


       The complainant testified that, while she and appellant were casting a bait net along

the shore of Lake Meredith, appellant grabbed her by the “boobs” and “butt.” A short time

after the touching incident, the complainant alleged that appellant pulled his shorts down

and told her to lay on the ground. According to complainant’s testimony, when the


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complainant refused, appellant, pulled complainant’s shorts down, picked her up, and then

laid her on the ground. Complainant testified that appellant then laid on top of her,

penetrating her sexual organ with his sexual organ. Complainant testified appellant stayed

on top of her for about five minutes and then she pushed him off. Complainant was

subjected to rigorous cross-examination during which appellant’s trial counsel attempted

to show that the complainant had previously made allegations about a teacher improperly

touching her and that the allegations were not true. In fact, complainant was forced to

admit as much when confronted with conflicting stories she had given. At the conclusion

of the complainant’s testimony, the State rested its case-in-chief. Appellant rested without

presenting any additional witnesses. The jury found appellant guilty of both counts.


       After the jury trial and resulting convictions, appellant filed a motion for new trial.

The motion for new trial alleged that appellant’s trial counsel’s performance had been

deficient for failing to call certain witnesses, each of which, according to appellant, were

available at the time of trial and would have provided evidence favorable to the appellant.

The trial court overruled appellant’s motion for new trial and it is from this ruling that

appellant appeals.


                                    Standard of Review


       We review the granting or denial of a motion for new trial under an abuse of

discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). As the

reviewing court, we do not substitute our judgment for that of the trial court, rather we

decide whether the trial court’s decision was arbitrary and unreasonable. Id. Further, we


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must view the evidence in the light most favorable to the trial court’s ruling and presume

all reasonable factual findings that could have been made against the losing party were

made. Id. Accordingly, a trial court abuses its discretion by denying a motion for new trial

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


                            Ineffective Assistance of Counsel


       In the present case, we will apply the aforementioned standard of review for denial

of a motion for new trial to appellant’s contention that his trial counsel was ineffective.

Claims of ineffective assistance of counsel are measured against the two-prong standard

of Stickland v. Washington. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986)

(adopting Strickland as applicable standard under Texas Constitution). Under the first

prong of the Strickland test, an appellant must show that counsel's performance was

"deficient." Strickland, 466 U.S. at 687. "This requires showing that counsel made errors

so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by

the Sixth Amendment." Id. To be successful in this regard, an appellant "must show that

counsel's representation fell below an objective standard of reasonableness." Id. at 688.

Under the second prong, an appellant must show that the deficient performance prejudiced

the defense. Id. at 687. The appropriate standard for judging prejudice requires an

appellant to "show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.            A

reasonable probability is a probability sufficient to undermine confidence in the outcome."

Id. at 694. Appellant must prove both prongs of Strickland by a preponderance of the

                                             4
evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000);

McFarland v. State, 845 S.W.2d 824, 842-43 (Tex.Crim.App. 1992).


       When applying the standards of Strickland, we are mindful that, as an appellate

court, we are to be highly deferential and presume that counsel’s actions fell within the

wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833

(Tex.Crim.App. 2002). Therefore, appellant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy. Ex

parte Ellis, 233 S.W.3d 324, 330 (Tex.Crim.App. 2007). In reviewing the conduct of trial

counsel, we are directed to analyze the totality of the representation. Thompson v. State,

9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Finally, we must remember that we are not to

make these determinations by application of hindsight. Id.


                                          Analysis


       The totality of appellant’s argument is that trial counsel was ineffective because he

failed to call four specific witnesses who were available at the time of trial and whose

testimony would have been beneficial to appellant. However, there are several flaws in

appellant’s arguments.


       First, appellant’s theory completely discounts the testimony of his trial counsel at the

motion for new trial hearing. At that hearing, both lead counsel and co-counsel testified

at length about the efforts expended in investigating the case against appellant and

conducting interviews with witnesses. According to this testimony, appellant’s trial counsel

interviewed 20 witnesses and six expert witnesses. Also, trial counsel testified that the

                                              5
cross-examination of the complainant had significantly compromised her credibility and that

counsel did not feel appellant’s case could get any better. This opinion was seconded by

co-counsel. Trial counsel explained that they wanted the evidentiary portion of the trial to

end on a high note for appellant and the cross-examination of the complainant was the

high note they were looking for. As such, the decision of counsel can be considered sound

trial strategy. Ellis, 233 S.W.3d at 330.


       Second, trial counsel had valid reasons not to call the witnesses about which

appellant complains. As to Matthew McCoy, the record of the motion for new trial hearing

demonstrates that his testimony was somewhat inconsistent with the interview taken from

him at the Bridge Children’s Advocacy Center. Additionally, there are questions regarding

the perception the jury would have of Matthew’s testimony, such as his motive for

testifying, his ability to comprehend the events of this case, and the effectiveness of a nine-

year-old defending his father. The record reflects that trial counsel’s decision to refrain from

calling Matthew was based on a number of different factors. All of these factors are

matters within the professional judgment of trial attorneys. As such, they would all be

classified as matters of trial strategy. Id.


       Regarding the testimony of Yvonne McCoy, the record again reflects that a

conscious decision was made that the benefit of her testimony was outweighed by the

perception a jury would have of her motives for testifying. Counsel was concerned that she

would be presented as defending her breadwinner against her daughter. Therefore, the

decision not to call her as a witness can be accurately described as trial strategy. Id.



                                               6
       Leo Ramos’s testimony was presented via an affidavit in which he stated that he

was present when his wife, Belen, had her encounter with appellant. Ramos said that

appellant did not say he was drunk and could not remember what happened on the night

in question. However, during the motion for new trial hearing, there was affirmative

testimony of trial counsel that the affidavit of Ramos was completely at odds with how trial

counsel’s investigation before trial revealed Ramos would testify. Specifically, trial counsel

testified that Ramos had, before trial, never indicated that appellant did not make the

statements that Ramos’s wife, Belen, attributed to him. Further, the State produced

evidence that Ramos had told the prosecutors that he was present when appellant made

the statements to his wife and had heard appellant admit he had been drinking while taking

his medication and, therefore, did not remember what had occurred on the evening in

question. The record does not support any conclusion that Ramos’s testimony would have

been beneficial to appellant. Therefore, a decision to refrain from calling Ramos would not,

even if assumed to be deficient for Strickland purposes, have prejudiced appellant.

Strickland, 466 U.S. at 694.


       Regarding the testimony of Nell Yocum, trial counsel testified that Yocum’s

statements to him were not as definitive as those made in the affidavit produced at the

motion for new trial hearing. Additionally, much of the affidavit testimony would have been

subject to objection by the State and its ultimate admissibility is far from certain. See TEX .

R. EVID . 412. Therefore, the decision not to call Yocum can, like the other witnesses, be

fairly attributable to trial strategy. Ellis, 233 S.W.3d at 330.




                                               7
       Because the decisions made by trial counsel were either part of a trial strategy or

did not prejudice the appellant, we cannot say that the trial court abused its discretion in

denying appellant’s motion for new trial. Charles, 146 S.W.3d at 208. Because the trial

court did not abuse its discretion, we overrule appellant’s issues.


                                        Conclusion


       Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                                 Mackey K. Hancock
                                                      Justice



Do not publish.




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