Opinion issued October 10, 2013




                                  In The

                           Court of Appeals
                                  For The

                       First District of Texas
                        ————————————
                           NO. 01-13-00281-CR
                           NO. 01-13-00282-CR
                         ———————————
             CHARLES EDWARD HORTON, JR., Appellant
                                    V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 258th District Court
                          Polk County, Texas
                      Trial Court Case No. 22,490
                           MEMORANDUM OPINION

      A jury found appellant Charles Edward Horton, Jr. guilty of two felony

offenses: aggravated sexual assault and indecency with a child. 1 The jury assessed

appellant’s punishment at 99 years in prison for the aggravated-sexual-assault

offense and at 20 years in prison for the indecency-with-a-child offense, with the

sentences to be served concurrently. Presenting the same issue in each appeal,

appellant contends that he received ineffective assistance of counsel at trial. 2

      We affirm the judgment of conviction in each appeal.

                               Background Summary

      On September 11, 2011, eight-year-old C.H. told her mother, Christina, that

appellant, who is C.H.’s father, had sexually abused her on two occasions. C.H.

told her mother that the first incident of abuse occurred while C.H. was living with

her paternal grandparents from September 2008 until November 2010. C.H. told

Christina that appellant had rubbed his penis on her bottom.

      C.H. told her mother that the second incident of sexual abuse occurred in

2010 while C.H. was staying overnight at the trailer of appellant’s girlfriend. C.H.

told her mother that appellant had forced her to perform oral sex on him.

1
      See TEX. PENAL CODE ANN. § 22.021 (Vernon 2011) (aggravated sexual assault),
      § 21.11 (Vernon 2011) (indecency with a child).
2
      This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was
      transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
      ANN. § 73.001 (Vernon 2013).
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      The day after C.H. made her outcry, Christina contacted the sheriff’s

department to report the sexual abuse.          As part of the investigation, C.H.

underwent a forensic evaluation during which she told the evaluator that appellant

had inserted his penis in her vagina. C.H. stated that this occurred while she was

staying at the trailer of her father’s girlfriend. C.H. also told the evaluator that, on

another occasion, appellant had forcibly lain on top of her and “moved up and

down.” She said that she and appellant were clothed during the incident. C.H.

stated that this had occurred at her grandmother’s house. C.H. also told the

evaluator that she had been afraid to report the abuse because appellant had

threatened to kill her and anyone she told about it.

      C.H. also underwent a sexual assault medical examination by a nurse.

During the examination, C.H. told the nurse that appellant had “raped me.” The

nurse’s notes from the examination stated that C.H. had indicated that appellant

had inserted his penis into her vagina three different times. The notes reflected that

C.H. had said that appellant told her that he would kill anyone that she told about

the abuse.

      The medical records from the examination indicate that the nurse saw no

physical trauma on C.H. The nurse observed that C.H.’s hymen was slightly

irregular, which may, or may not, have been a result of sexual abuse; however, the




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examining nurse indicated that she was unable to determine whether the

abnormality was caused by sexual abuse.

      In a three-count indictment, appellant was charged with two counts of

aggravated sexual assault and one count of indecency with a child. The first count

asserted that appellant had “intentionally or knowingly cause[d] the penetration of

the female sexual organ of [C.H.], a child younger than 14 years of age . . . by

inserting his male sexual organ into [C.H.’s] female sexual organ.” The second

count alleged that appellant had “intentionally or knowingly cause[d] the

penetration of the mouth of [C.H.], a child younger than 14 years of age . . . with

[his] sexual organ . . . .” The third count in the indictment stated that appellant

committed the offense of indecency with a child by “intentionally, with the intent

to arouse or gratify [his] sexual desire, engage[d] in contact with [C.H.], a child

younger than 17 years of age . . . by causing [C.H.] to touch any part of [his]

genitals.”

      At trial, C.H. testified that, while she lived with her grandparents, appellant

had penetrated her vagina with his penis on two occasions and had also rubbed her

bottom with his penis. She also testified that, when she was sleeping at the trailer

of appellant’s girlfriend, appellant had penetrated her vagina with his penis. C.H.

also stated that appellant had placed his penis inside her mouth.




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      Besides C.H., the State offered the testimony of C.H.’s mother, the

investigating sheriff’s deputy, and the forensic evaluator.         The State also

introduced testimony regarding C.H.’s sexual assault examination.

      The defense called six witnesses to testify during the guilt-innocence phase.

Among these witnesses was appellant’s girlfriend who owned the trailer where

C.H. claimed that appellant had sexually assaulted her. The girlfriend testified that

the trailer was a small-one room camper. She stated that she was always present

when C.H. spent the night. The girlfriend testified that she did not see appellant

engage in any sexual contact with C.H.

      Appellant’s father also testified. He testified that he did not believe that

C.H. had been sexually assaulted by appellant during the two years that C.H. lived

with him and his wife. Appellant’s father stated that appellant was never alone

with C.H., and he did not believe that C.H. was telling the truth about the abuse.

Appellant’s siblings also testified that they had not seen appellant engage in any

sexual contact with C.H.

      The jury found appellant guilty of the first count of aggravated sexual

assault premised on the allegation that appellant had intentionally or knowingly

penetrated C.H.’s vagina with his penis. The jury found appellant not guilty of the

second count of aggravated sexual assault, which was based on the allegation that

appellant had intentionally or knowingly penetrated C.H.’s mouth with his penis.

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The jury found appellant guilty of the third count in the indictment, the offense of

indecency with a child. The jury assessed appellant’s punishment at 99 years in

prison for the aggravated-sexual-assault offense and at 20 years in prison for the

indecency-with-a-child offense, to be served concurrently.

      Appellant did not file a motion for new trial with regard to either conviction.

These two appeals followed.

                        Ineffective Assistance of Counsel

      In each appeal, appellant raises one issue, complaining that he received

ineffective assistance of counsel at the punishment hearing.

A.    Applicable Legal Principles

      To prevail on an ineffective assistance of counsel claim, an appellant

typically must show by a preponderance of the evidence both deficient

performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.

2009). Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. See Williams, 301 S.W.3d at

687; Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

      To show deficient performance, an appellant must demonstrate that his

attorney’s performance fell below an objective standard of reasonableness under

prevailing professional norms. Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064;

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Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). In our review, we

indulge a strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005). We must review the totality of the representation and the circumstances of

each case without the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 142

(Tex. Crim. App. 2011).         “[T]he record must demonstrate that counsel’s

performance fell below an objective standard of reasonableness as a matter of law,

and that no reasonable trial strategy could justify trial counsel’s acts or omissions,

regardless of his or her subjective reasoning.” Id. at 143.

      To show sufficient prejudice, the appellant must show the existence of a

reasonable probability that, but for his attorney’s deficient performance, the result

of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068; Lane, 303 S.W.3d at 707. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694,

104 S. Ct. at 2068.

B.    Analysis

      Appellant first asserts that counsel’s performance was deficient because

counsel did not subpoena and call certain witnesses to testify. During pretrial

conference, counsel had mentioned that he intended to subpoena a number a

witnesses, which were never called during trial.

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      The “failure to call witnesses at the guilt-innocence and punishment stages is

irrelevant absent a showing that such witnesses were available and appellant would

benefit from their testimony.” Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.

App. 2010) (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983));

see Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011,

pet. ref’d). Appellant fails to demonstrate whether these witnesses were available,

how the witnesses’ testimony was admissible, or how it would have been

beneficial. In other words, appellant has shown neither deficient performance by

his counsel nor a reasonable probability that the results of the proceeding would

have been different. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064.

      Appellant also contends that his counsel’s performance was deficient

because his counsel filed a number of pretrial motions for which he never obtained

rulings. However, an appellant fails to establish ineffective assistance of counsel

when he makes no showing that a ruling on pretrial motions would have changed

anything in the proceeding. See Roberson v. State, 852 S.W.2d 508, 510–12 (Tex.

Crim. App. 1993) (holding that, without a showing that a pretrial motion had merit

and that a ruling on the motion would have changed the outcome of the

proceeding, counsel is not ineffective for failing to assert the motion). Here,

appellant makes no showing that any of the motions on which counsel obtained no

ruling had merit or that the results of the proceeding would have been different had

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he obtained a favorable ruling on any of them. To the contrary, in his brief,

appellant admits that “[i]t is difficult in this stage of the proceeding to determine

whether the result of the trial would have been different had counsel acted

reasonably in disposing of his pretrial motions.”

      Appellant also points out that counsel did not make a motion for instructed

verdict following the close of the State’s case.      The failure to move for an

instructed verdict cannot provide the basis for a claim of ineffective assistance of

counsel if the State produced more than a scintilla of evidence supporting a guilty

verdict. See Gill v. State, 111 S.W.3d 211, 217 (Tex. App.—Texarkana 2003, no

pet.). Here, given the testimony of C.H., the State presented more than a scintilla

of evidence to support appellant’s convictions for the offenses of aggravated sexual

assault and indecency with a child. The testimony of a child complainant alone is

sufficient to support a conviction for both aggravated sexual assault and indecency

with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 2012).

      Next, appellant contends that he was prejudiced in his defense because his

“counsel made very few objections for a trial of this complexity and length.” We

recognize that a failure to object to inadmissible evidence may constitute a sound

and plausible trial strategy. See Thomas v. State, 886 S.W.2d 388, 392 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d). In addition, appellant does not point

to any specific place in the record in which his counsel failed to make a

                                         9
meritorious objection. For this reason, appellant has not shown how his counsel’s

performance was deficient or how any specific failure to object prejudiced his

defense.

      Finally, appellant contends animosity existed between him and his trial

counsel, which prejudiced him. As an example, appellant claims that he advised

his counsel during voir dire that he knew a venire member from high school and

that the venire member bore a grudge against appellant for past transgressions.

Appellant points out that the venire member was seated on the jury and served as

jury foreperson.

      Appellant further claims that he “tried to fire his attorney” but was not

permitted to do so. Despite these contentions, appellant acknowledges that the

record is silent with respect to these issues. He further acknowledges “this is a

matter better taken up in a post appellate writ proceeding.” See Mitchell v. State,

68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (“A petition for writ of habeas corpus

usually is the appropriate vehicle to investigate ineffective-assistance claims.”).

      We hold that appellant has not shown by a preponderance of the evidence

that he received ineffective assistance of counsel at trial. See Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064.

      We overrule appellant’s sole issue in each appeal.




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                                    Conclusion

      We affirm the judgment of the trial court convicting appellant of count one,

aggravated sexual assault, and of count three, indecency with a child.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

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




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