      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00503-CR



                                  Kenneth Ray Henry, Appellant

                                                   v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
    NO. 13,079, HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING



                               MEMORANDUM OPINION


               A jury convicted Kenneth Ray Henry on two counts of aggravated sexual assault.

See Tex. Penal Code Ann. § 22.021 (West Supp. 2009). The jury assessed punishment at twenty-five

years in prison for the first count and at fifty-five years in prison for the second count, and assessed

a total fine of $10,000. Henry complains that he was denied effective assistance of counsel. We

affirm the judgment of conviction.

               On the morning of April 22, 2004, Darla Crider was at her home getting ready for

work as usual. After she had finished her shower, an African-American male, later identified as

Henry, entered her apartment, covered her face and head with a towel, and forced her into the

bedroom onto the bed. He proceeded to penetrate her sexual organ with his finger and with his

sexual organ, and then left.
               Immediately after she heard the door close, Crider locked the door and called 911.

She was taken to St. David’s Hospital, where she was examined by a sexual assault nurse examiner

(SANE). DNA evidence was collected and matched to a known DNA sample of Henry.

               Henry was indicted on two counts of aggravated sexual assault. A jury convicted

Henry as charged, and assessed punishment at twenty-five years in prison for the first count and

at fifty-five years in prison for the second count. The jury also assessed a total fine of $10,000. In

a single issue, Henry argues that he was denied effective assistance of counsel.

               We evaluate claims of ineffective assistance of counsel against the standard set forth

in Strickland v. Washington. See 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770,

774 (Tex. Crim. App. 1999). In deciding a claim of ineffective assistance of counsel, we must

determine whether an attorney’s performance was deficient and, if so, whether that deficiency

prejudiced the defense. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999). An attorney’s performance is deficient if it falls below an objective

standard of reasonableness. Strickland, 466 U.S. at 688; Thompson, 9 S.W.3d at 812. Deficient

performance is prejudicial when, but for the attorney’s unprofessional conduct, there is a reasonable

probability that the outcome of the proceeding would have been different. Strickland, 466 U.S.

at 694; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

In determining whether an attorney’s performance was deficient, we apply a strong presumption

that the attorney’s conduct was within the range of reasonable professional assistance. Thompson,




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9 S.W.3d at 814. We review the effectiveness of counsel in light of the totality of the representation

and the circumstances of each case. Id. at 813.

               In most cases, an undeveloped record on direct appeal is insufficient to satisfy

the dual prongs of Strickland because the reasonableness of counsel’s decisions often involves facts

not appearing in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.

2003). Without evidence of the strategy and methods involved concerning counsel’s actions at trial,

an appellate court should presume a sound trial strategy. See Thompson, 9 S.W.3d at 814. Where,

as here, an allegation of ineffective assistance of counsel is not raised in a motion for new trial,

trial counsel has no opportunity to explain his conduct, and absent such opportunity, an appellate

court should not find deficient performance unless the challenged conduct was “so outrageous that

no competent attorney would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

               Henry argues that his trial counsel “set forth a defensive theory for which he was

not prepared, had not investigated, had not sought to secure the presence of necessary witnesses,

and which had no plausible basis.” The defensive theory advanced by counsel was that Henry was

framed by a one of his former lovers, Tracy McClintock, who had provided a used condom to

another unknown African-American male to carry out the sexual assault on Crider.

               The state of the evidence provides a framework for our analysis on this point.

Immediately following the attack, Crider reported the incident and was examined. DNA was

collected, and that DNA matched a known sample of Henry’s DNA. Under these circumstances,

defense counsel was left with limited means of mounting a defense, means which could be further



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limited by information learned from his client, but not revealed to the court. See Tex. Disciplinary

R. Prof’l Conduct 3.03, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (West 2005).

While the defense argued by trial counsel was somewhat far-fetched, there is no indication

from the record that any other defense was available or more consistent with Henry’s sponsored

version of the facts.

                The theory advanced by trial counsel was presumably developed based on counsel’s

communications with Henry, as only Henry could know that he had previously been in a relationship

with a woman, McClintock, who had allegedly “threatened to have him locked up if he [did]n’t

come back.” Without information in the record to the contrary, we presume counsel advanced this

“scorned lover” defensive theory because other possible defensive theories were either less plausible

or unavailable based on information known to counsel. At any rate, in the absence of an

undeveloped record on appeal, we presume a sound trial strategy—that the defensive theory

advanced was, indeed, the most plausible theory available. See Thompson, 9 S.W.3d at 814.

                Henry also contends that, even if the defensive theory advanced was plausible,

counsel was not prepared to present it. According to Henry, counsel had neither properly

investigated the theory nor sought to secure the presence of necessary witnesses. Specifically, Henry

refers to his alleged scorned lover, McClintock.

                In an exchange with the court, trial counsel stated that “in the file, there’s been

two previous requests for subpoenas that we have not gotten served.” This statement is the only

evidence on this point. A review of the record sheds no light on why the subpoenas had not “gotten

served.” In the absence of such evidence, we must presume that defense counsel had a reasonable

explanation as to why the subpoenas were never served. See Goodspeed, 187 S.W.3d at 392.

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               Even in the absence of a reasonable explanation, we cannot conclude that Henry has

satisfied the second prong of Strickland—that counsel’s failure to secure this witness prejudiced

Henry’s defense. See 466 U.S. at 687. Even if McClintock no longer bore any hostility toward

Henry (as a former scorned lover), there is no indication in this record that she would have been

willing to admit to having conspired against Henry, as she, herself, would have been subject to

criminal prosecution. As the State points out, the best strategy may have been for trial counsel to

act exactly as he did:


       i.e. to allow McClintock to remain at large, and thereby limit her persona to that of
       a phantom character towards which defense counsel could sling proverbial spears
       without fear of reproach, hoping that in some juror(s) mind a reasonable doubt might
       emerge.


Again, in the absence of a developed record on appeal, we are required to presume the soundness

of such a strategy. See Thompson, 9 S.W.3d at 814.

               Henry also argues that trial counsel should have objected to the use of the term

“victim” by the prosecutor, witnesses, and the district court. Use of this term, Henry argues, was an

improper comment on the weight of the evidence and prejudicial.

               In support of his argument, Henry relies on Talkington v. State, 682 S.W.2d 674, 674-

75 (Tex. App.—Eastland 1984, pet. ref’d), in which the court of appeals held that the trial court’s

use of the word “victim” in the jury charge was an improper comment on the weight of the evidence.

In Talkington, however, all parties agreed that the sexual intercourse had occurred, and the sole issue

was whether or not the complainant had consented. Id. at 675. Because the “controversy was

whether the complainant was truly a ‘victim’ or a willing participant,” the court’s use of the word


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victim in the charge was an improper comment on the weight of the evidence. Id. Here, Henry did

not argue that the sexual intercourse was consensual. Rather the controversy centered around the

identity of the perpetrator. It was undisputed that Crider was, in fact, the victim of a crime. Thus,

the use of the word “victim” to refer to Crider was neither prejudicial nor an improper comment on

the weight of the evidence.

                In addition, the trial court’s use of the word “victim” in Talkington was in the

application paragraph of the jury charge, in direct reference to the complainant. Here, the use of

the word “victim” about which Henry complained was in an instruction paragraph, by which the

district court informed the jury of the applicable law without reference to the specific case or parties.

The language used by the court directly tracked the applicable criminal statute and was not, therefore,

prejudicial or an improper comment on the weight of the evidence. See Tex. Penal Code Ann.

§ 22.021; Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (“Following the law as

it is set out by the Texas Legislature will not be deemed error on the part of a trial judge.”).

                Having found no merit to Henry’s claim that he was denied effective assistance of

counsel, we overrule his sole issue and affirm the judgment of conviction.



                                                __________________________________________

                                                G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 4, 2010

Do Not Publish

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