                                 NUMBER 13-12-00301-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

TIMOTHY ALLEN FOSS SR.,                                                                 Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                     Appellee.


                       On appeal from the 411th District Court
                              of Polk County, Texas.


                             MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
        Appellant Timothy Allen Foss Sr. challenges his conviction for indecency with A.S.,

a child, by sexual contact, a second-degree felony. 1 See TEX. PENAL CODE ANN. §


        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
21.11(a)(1) (West 2011). After returning a guilty verdict, the jury assessed punishment

at ten years’ confinement in the Institutional Division of the Texas Department of Criminal

Justice. By four issues, Foss complains that (1) the trial court erred when it allowed the

State to ask leading questions of A.S.; (2) the State failed to corroborate A.S.’s testimony;

(3) the trial court erred in admitting evidence of alleged sexual assaults against A.S. by

persons other than Foss; and (4) trial counsel provided ineffective assistance. 2 We

affirm.

                                         I. EVIDENTIARY ISSUES3

A. A.J.’s Testimony in Response to Leading Questions

          By his first issue, Foss contends that the trial court erred when it allowed the State

to ask A.S. leading questions on direct examination. Foss asserts that this form of

evidence presentation was not appropriate because the fourteen-year-old child was not

of a tender age and because the child demonstrated the ability to testify on

cross-examination. Foss claims that the State’s leading questions resulted in evidence

that was not competent. However, Foss did not object to the State’s leading questions

and so preserved nothing for our review. See TEX. R. APP. P. 33.1 (setting out that the

complaining party must make a specific objection at the earliest possible opportunity and

seek a ruling on that objection); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.

2002). We overrule Foss’s first issue.


          2
              We have reorganized and renumbered Foss’s three issues as four.
          3
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
B. NO Corroborating Testimony

       In his second issue, Foss contends that the evidence is insufficient because the

State failed to corroborate A.S.’s testimony with subsequent witnesses. Foss argues

that, instead, the outcry testimony was inconsistent with A.S.’s testimony in many

instances.

       In reviewing the sufficiency of the evidence to support a conviction, we view the

evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). A child sexual-abuse

complainant’s testimony alone is sufficient to support a conviction for indecency with a

child or aggravated sexual assault.       Soto v. State, 267 S.W.3d 327, 332 (Tex.

App.—Corpus Christi 2008, no pet.); Perez v. State, 113 S.W.3d 819, 838 (Tex.

App.—Austin 2003, pet. ref'd), overruled on other grounds Taylor v. State, 268 S.W.3d

571, 587 (Tex. Crim. App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1)

(West Supp. 2012) (requiring no corroboration of a child complainant's testimony when

defendant is accused of violating a section of chapter 21 of the penal code).

       A person commits indecency with a child if the person engages in sexual contact

with a child younger than seventeen or causes the child to engage in sexual contact.

TEX. PENAL CODE ANN. § 21.11(a)(1). “Sexual contact” means any touching by a person,

including touching through clothing, of the anus, breast, or any part of the genitals of a

child if committed with the intent to arouse or gratify the sexual desire of any person. Id.

§ 21.11(c). The specific intent required for the offense of indecency with a child may be


                                             3
inferred from a defendant's conduct.        Bazanes v. State, 310 S.W.3d 32, 40 (Tex.

App.—Fort Worth 2010, pet. ref'd) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex.

Crim. App. 1981)).

       In this case, A.S. testified that he was fourteen years old at the time of trial.

Testimony also established that A.S. had never been married. See TEX. PENAL CODE

ANN. § 21.11(b-1) (“It is an affirmative defense to prosecution under this section that the

actor was the spouse of the child at the time of the offense.”). A.S. also testified that

Foss touched him on his “private” with Foss’s “private” through A.S.’s clothes when A.S.

was eight or nine years old. According to A.S., Foss told A.S. to go into Foss’s room

while his cousins played a video game in the living room. Foss closed and locked the

door and told A.S. to lie down on the “one big queen size bed.” Foss took off his clothes

while standing, then got on top of A.S. Foss “press[ed] down on” A.S. with his “private,”

and Foss’s “private” touched A.S.’s “private” through A.S.’s underwear. According to

A.S., there was no skin-to-skin contact. A.S. described Foss’s private as “big and it had

no hair on it,” shaped like a pen, straight, and “hard as a rock.” A.S. testified the incident

lasted “maybe about five seconds”; A.S. did not say anything during the incident because

he was scared, and Foss told him afterwards, “Don’t tell anyone or I’ll get you.”

       Foss’s attack on the alleged inconsistencies in the testimony, i.e., A.S.’s testimony

and the outcry witness’s testimony, fails because the jury is the sole judge of the

credibility of witnesses and is free to accept or reject some, all, or none of the testimony in

this case. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“[The

jury] is entitled to believe or disbelieve all or part of the witness's testimony . . . because


                                              4
[it] has the opportunity to observe the witness's demeanor and appearance.”); Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury chose to believe A.S.’s

version of events, and the legal sufficiency standard of review requires that this credibility

determination stand. See Brooks, 323 S.W.3d at 899. So even if Foss is correct that

there were inconsistencies in the testimony presented, it was up to the jury to decide

which part of the testimony to believe or disbelieve.

       Foss's argument that there was no corroborating evidence also fails because

A.S.’s testimony alone can support the verdict and no corroborating evidence is required.

See Soto, 267 S.W.3d at 332; Perez, 113 S.W.3d at 838; see also TEX. CODE CRIM. PROC.

ANN. art. 38.07. Here, A.S. testified that he was eight or nine when Foss had sexual

contact with him by touching his genitals through his clothing. See TEX. PENAL CODE

ANN. § 21.11(a)(1). And the jury could have inferred that Foss touched A.S. with the

intent to arouse himself through A.S.’s testimony that Foss took him to his room, locked

the door, and told A.S. to lie down on the bed. See id. § 21.11(c); Bazanes, 310 S.W.3d

at 40. A.S. testified that Foss took off his clothes, got on top of A.S., pressed down on

him.   A.S. described Foss’s “private” as “hard as a rock.”         A.S.'s testimony alone

supports a guilty verdict. See Soto, 267 S.W.3d at 332; Perez, 113 S.W.3d at 838; see

also TEX. CODE CRIM. PROC. ANN. art. 38.07.

       In sum, viewing the evidence in the light most favorable to the verdict, we conclude

that a rational trier of fact could have found the essential elements of indecency with a

child beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899. We overrule Foss’s

second issue.


                                              5
C. Testimony Regarding Alleged Sexual Assaults Against A.S. by Other Persons

       Foss complains by his third issue that the trial court abused its discretion when it

allowed evidence of alleged sexual assaults against A.S. by persons other than Foss.

He claims that this evidence had “no redeeming evidentiary relevance with regard to his

guilt,” unfairly prejudiced him, and resulted in “an unreliable verdict by the triers of fact.”

However, Foss made no objection to any testimony about the extraneous offenses

involving other persons. Instead, Foss’s counsel mentioned the extraneous conduct

during opening statements, extensively cross-examined several witnesses on the

subject, and called one of those persons during the defense’s case-in-chief.              That

person denied any improper conduct. Foss has preserved nothing for our review on this

issue. See TEX. R. APP. P. 33.1; Wilson, 71 S.W.3d at 349. We overrule the third issue.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his fourth issue, Foss generally contends that his trial counsel was ineffective in

investigating the State’s case, in precluding inappropriate, irrelevant, and unduly

prejudicial evidence, and in preserving error.       More specifically, Foss complains of

counsel’s failure: (1) to request notice of extraneous offense evidence; (2) to file any

pre-trial motions; (3) to object to testimony regarding allegations of sexual assault of A.S.

by two others and to request a hearing for the purpose of determining the admissibility of

evidence of these allegations; (4) to object to the admission of evidence, including but not

limited to A.S.’s unrecorded statement; (5) to request a limiting instruction in the jury

charge about extraneous offense evidence; and (6) to object to testimony from the

forensic interviewer about A.S.’s believability and the substance of A.S.’s conversation


                                              6
with the interviewer.

       A claim that trial counsel was ineffective is generally analyzed under the familiar

standard set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). To obtain a

reversal of a conviction for ineffective assistance of counsel, a defendant must show that:

(1) counsel's performance fell below an objective standard of reasonableness and (2)

counsel's deficient performance prejudiced the defense, resulting in an unreliable or

fundamentally unfair outcome of the proceeding. Id. The court of criminal appeals has

recently explained this standard as follows:

       For a claim of ineffective assistance of counsel to succeed, the record must
       demonstrate both deficient performance by counsel and prejudice suffered
       by the defendant. An ineffective-assistance claim must be firmly founded
       in the record and the record must affirmatively demonstrate the meritorious
       nature of the claim. Direct appeal is usually an inadequate vehicle for
       raising such a claim because the record is generally undeveloped. This
       statement is true with regard to the deficient performance prong of the
       inquiry, when counsel’s reasons for failing to do something do not appear in
       the record. Trial counsel should ordinarily be afforded an opportunity to
       explain his actions before being denounced as ineffective. If trial counsel
       is not given that opportunity, then the appellate court should not find
       deficient performance unless the challenged conduct was so outrageous
       that no competent attorney would have engaged in it.

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012) (citations omitted).

       The present record is insufficiently developed to show counsel’s reasons for not

making objections to leading questions and to certain testimony, for not filing pre-trial

motions, and for not requesting a limiting instruction about extraneous offense evidence.

See id. Counsel’s reasons for failing to act in this regard do not appear in the record, and

we cannot conclude that the challenged conduct was so outrageous that no competent

attorney would have engaged in it. See id. at 593. Foss has not demonstrated deficient


                                               7
performance by counsel. See id; see also Strickland, 466 U.S. at 687. And Foss has

not established that any of these complained-of decisions prejudiced him.        See

Menefield, 363 S.W.3d at 592; Strickland, 466 U.S. at 687. Based on the record before

us, we cannot conclude that Foss’s trial counsel performance was ineffective. We

overrule Foss’s fourth issue.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.



                                                          NELDA V. RODRIGUEZ
                                                          Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 19th
day of December, 2013.




                                             8
