                      NO
                                   773-IS

            •COURT    OF
                              IN     THE
                              CRIMINAL         APPEALS
                                                                         ORIGINAL
                           OF      TEXAS




                         PD-o-773- if

                     AUSBON        OSBORNE,
                                         Appellant                         <^pp j ^ 2015
                                   U.


                   THE   STATE          OF    TEXAS
                                         Appellee




APPELLANT'S      PETITION       FOR      DISCRETIONARY         REVIEW




                                                                            FII'FDIfJ
                                                                            * s:••'•*• -.U- IW
                                                                                   !I ^

                                                               COURT OF CRIMINAL APPF^
                         On    Appeal         from the
        396th Judicial District Court                                    SEP loZCj
                 Tarrant       County,         Texas
                    Trial       No.13165B4R
                                                                     Abel Acosta, CierK:



            In   Appeal       No.07-13-00156-CR
                           from         the
                    Court       of      Appeals
      for    the   Seventh         District       of   Texas
                     Amarillo,           Texas



                                                         Ausbon      Osborne              #185 3B17
                                                         Hodge      Unit
                                                         379   FM    2972       W
                                                         Rusk,      TX   757B5
                                        NO.




                                                IN    THE
                                COURT    OF    CRIMINAL        APPEAL • S
                                               OF    TEXAS




                                         Ausbon       Osborne
                                                          Appellant

                                                    VS


                                    The       State      of   Texas
                                                          Appellee




               APPELLANT'S        PETITION FOR DISCRETIONARY                    REVIEW



TO THE   COURT OF CRIMINAL APPEALS OF TEXAS:

        Appellant respectfully submits this petition for Discretionary
Review and      moves that this Honorable Court grant                           review   of   this   cause
and offers      the following in support thereof;

                        STATEMENT        REGARDING            ORAL   ARGUMENT


The Appellant requests oral argument in this cause, because such argu
ment may assist the Court in.applying the facts to the issues raised.
It is suggested that oral argument may help simplify the facts and cl
arify    the   issues.

                                  STATEMENT          OF   THE    CASE


     The state initially charged Appellant in a one-count February 24,
2012 indictment in Cause No. 1255657; it alleged that Appellant insert
ed his finger into complainant's sexual organ on July 29, 2009. The
State added three counts under an indictment in Cause No. 13165 BAR that
was filed on February 28, 2013. The three additional counts alleged
that Appellant on or about July 29, 2009 penetrated or contacted comp-
ainant's female sexual organ, with his penis, touched her. sexual organ,
and caused her bodily injury.  The conviction on all four counts under
The February 28, 2013 indictment are before this Honorable Court of Crim-
nal   Appeals,    v. •- ,' ":
                      STATEMENT    OF    PROCEDURAL   HI5TR0Y

In cause No. 13165B4R THE Appellant was convicted with the offense of

four counts of Aggravated Sexual. Assault.                 The Appellant was convicted

of such offense on April 9, 2013 and appealed the conviction.~(On April

12, 2013).    On May 29, 2015 the Amarillo Court of Appeals affirmed the

conviction.    No motion for rehearing was filed.                On &' <^T'" l-$   this
Petition for Discretionary Review was timely forwarded to the Court of

Criminal Appeals for filing pursuant to Rule 9.2(b), Texas Rule of App
ellant   Procedure.


                            GROUNDS       FOR   REVIEW


                                           I.


                           INSUFFICIENT         EVIDENCE


The evidence was insufficient to support the conviction because there

was no rational basis for concluding that Appellant acted more then

recklessly,   and because Appellant had            a parental purpose.     The evidence

was insufficient to prove any of the counts under a rigorous assessment

of the qualitative value of the evidence.                  One important consideration

was   that complainant falsely accused her stepfather (Randels)                of sim

ilar abuse two years earlier.             *The charges against Randels were dism

issed in September of 2008.             Complainant gave      a tricky forensic interv

iew alleging that Appellant committed offense in question before this

Honorable Courts review.          CBS Investigator Jerald Henderson was the only

witness who   attributed an admission to Appellant in order to corroborate

complainant's allegation about Sexual Abuse in question, CPS Investigator

did no such recordings in his efforts to obtain the evidence such as phone


calls and certain specific interview in regards to the evidence that was

used in the conviction of Appellant,             by witness CPS (Henderson).
                               INSUFFICIENT      EVIDENCE


1.)    Complainant accused her mother's boyfriend of sexual abuse in
       2008, but the charges were dismissed.     Compiaiant accused live-
^•''   in boyfriend, De ma re us Carter in a December 2010-investigation
       of physical abuse.


2.)    Draper is Appellant wife, Draper took complainant to the hosp-
-".t.:. ital,   where they said that nothing was wrong with complainant.

3.)    Appellant reference to his girlfriend son meant reference to
       Ausbon Jr, his       five year-old boy with Jennifer White.

4.)    Detective Henz told the jury that the he reviewed the videotape
       of,complainant's forensic i nterview, which was not- shown to the
       jury, but he omitted that complainant went into detail about the
       day when Jennifer White found complainant acting out with Appell-nt.
       ant's five year-old son Ausbon Jr, which precipitated being con
       fronted and checked by Appellant.

5.)    Appellant explained in his interview with Detective Henz that
       Appellant acted with parental intent,"and the testimony from the
       State witness that Appellant was "checking" complainant could be
       rationally characterized as supportive of Appellant's explaination.

6.)    The trial Court erred in refusing a medical instruction, even th
       ough the parent-defendant indicated suspicion of sexaul abuse.
       Appellant indicated a medical purpose; he was concerned that com
       plainant might even need a shot if she were pregnant.
7.)    Detective Henz was incorrect that Appellant lacked support for his
       parenting theory,        since complainant discussed her                acting-out episode
       in   detail.    (APX & 8 ) .

8.)    Complainant made various statements that would have been contradicted
       by Jennifer White.  Complainant did not report abuse to Jennifer did
       not see Appellant penetrate complainant with his penis; and Jennifer
       and others saw or were present whencomplaint. checked complainant by
       looking at her only.

9.)    During her forensic interview,            Dula asked complainant at two diff
       erent points during the interview whether complainant was really
       telling the truth.  Dula was confused by complainant's inability to
       consistently describe two specific events.

10.)    Complainant's testimony at trial about "white stuff" was new; she
        did not mention anything about white stuff in her forensic inter
        view, much less in her statements to any of the State witnesses.

11.)    Failed to use complainant's videotape recantation; The video and
        a transcript of it also          could   have   been      used   to   confront   State wit
        nesses for their incomplete and biased investigation.  The video
        and transcript would have particularly supported a challenge the
        forensic      interview's     claims   that   she   did    not   express   substantial
        confusion during her interview of complainant.
                                     INSUFFICIENT lEvV.TiDEiNiCE


12.)    Failed to use complainant's forensic interview to demonstrate the
        validity of Ape11 ant's concerns about complainant acting-out in a
        sexual manner with                  Appellant's                 five year-old: son.                           Yet it       was true
        that there was a problem with complainant's acting-out which lead to
        Appellant examining complainant, as complainant explained in detail
        during   her     forensic             interview.

13.)     Failure to use the video of her forensic interview and an associated
         trancript to show that Appellant's concerns about complainant acting
         out were valid was substandard conduct that rendered the outcome un
         reliable, in combination with the other vital evidence that was not
         presented in Appellant's behalf.

14.)     Failed to use complainant's forensic interview to better impeach the
        forensic examiner, complainant's explainations were.so confusing and
        suspicious that the forensic interviewer, Dula, twice asked whether
        thee 1aimed abused "really did happen, ".,


                                        GROUNDS              FOR        REVIEW

                                                         II


                         INEFFECTIVE               ASSISTANCE                OF       COUNSEL




                 'c    h P (j e j. j. aiu   Bxamineo             ay      a   proTessionax                      menxaj.    neaixn
to determine if the Appellant was in fact competent to stand trial.
This Appellant is currently in the determination :of disability program, in
Rusk, TX. This program- is called the (MROP) wn'3'chhstands for Mentally Retard
ed Offender Program. Appellant's intellectual and adaptive functioning level
                                    P \/P 1    '1 «3   Q n    T n I.I    h T c   , -t-T*:-! pi   r* n IIr-i e o "I   nhnnl A   l-i.~»wr-i   K f> r-J   +• i-. A «




It is the contention of this Appelant that the                                                   jury that convicted him was
bias, the appellant argument is there was only one African American on his
jury.
                                                Statement           of   Case


C o m p 1 a in an t        li ved   App e 11 a nt in Arl ingt on a nd F ort W orth fo r most
                                     with
of   her . 1 i f   e   .     When p 1 a i nant was eigh t ye ars old , she accused her
                                      com

mother 's b oy f r iend of s e x u ally abus ing her .                 Th e ch arges agains t mother's
b o y f r i end w e r e dro pped bef ore c o m p 1 aina nt t u r n e d ni ne , a nd when complain-
ant wa s te n sh e       ma de  s i m u 1 ar a c c u s a tion s ag a i n s t Ap p e 11 a nt of s e x u a 11 y
ahusin g he r wh en s he w as n ine and 1 0 .                 Comp lain ant e x p 1 a i n e d in detail
that s he f alse ly a e c u s ed h er m other 's b oy f r iend at A p p e 1 1 a n t ' s behest.
During an in te rvie w wi th a det ectiv e , A ppel Ian t exp' 1 aine d that there was
a pare ntal pur pose , an d he den ied c ommi ttin g or act ing w i t h                      sex ual intent
w i t h r e spe ct t o th e ot her alle ged a cts .             Ap pell ant argue d that complian-
ant wa s      no t  cr edib le,   sine e he r c 1 i ams c o u 1 d no t fa irly be char acterized
as    con si s t ent.    Ap pell  ant pres ents a de tail ed r ecit ation of the facts
under Poin ts o f er r o r o n e thre w Fou r , w here he chal lenge s the s ufficiency
of    the     e vi dene e ,         a nd    c 1a im s   hi s    tri al     c   ouns   el   w as   i nef f e c t i v e .


                                               SUMMARY         OF   ARGUMENT


A p p e 1 I ant who was c o m p 1 a i nant 's father, wa s ch arge d with fou r co unts of
s e x u a II y abus ing he r .           Th e   ev ide nee     was     in suff i c i e nt to pro v e    an y of the
count s      un der     a rigo ro us a s s e s s m e nt of t he q u a 1 itat ive v a lue of t he ev id-
ence .       On e im portan t c o n s ider ati on was tha t co mpl a inant fals ely a c c u s ed
her s tep- f ath er of si mula r                se xua 11 y    a b u s e two year s earl ier .          On anot her
a c c u s atio n    c o m p 1 a i n an t ac c u s e d 1 ive-in boy f rie nd o f s i m u lar abus e .            C om-
plain ant is a slow le arne r a n d i s in s p eci al e due a t i o n a t he r sc h o o 1 . 5h-
o u 3. d this Cou rt not r e v e r se a nd render jud gmen t of a c q u i ttal wit h res pec t
to so me o r al 1 of t he c o u nts for insuff ici ent of t he evi dene e , i t sho uld
re ver se     a nd    r emand on any cou nts where it dete rmin es tha t Ap pell ant w as
**(de priv ed o f his ri ght to c o u n s e1 und er the 6th Amendm ent to t he U. S
Const i t u t ion ) .         The re v a r ious fa ctors t hat req uire a det ermi nati on of Ob-
j e c t i vely u n r easona bl e co nduc t, and sue h d ef ic ienc ies un derm ined conf id-
ence      in t he o u t - c o m e      of t he t ria 1 proce edi ngs ash o 1 e , i f pr e jud ice s h o u 1 d
not b e      pr e s u m e d due t r i al cou n s e             hea rin g im p ad r ment , and the fact this'
A p p e 1 lant is mental iy ret arde d.                  A p p e 11 ant ass ert s he to Id h is t rial c o u -
nsel he c o u 1 d not r ea d an d wr ite and d i d n ot u nder stand what w a s go in g on
d u r i n g im port ant pa rt s of the tr ial pro cee ding s .                           The fa ctor in quest ion
i n c 1 u de b ut a re not 1 i m i t ed t o ; trial c oun sel suff eredhe arin g im p a i r m ent
w h i c h , am ong other th ings , ca u s e d him t o                   e ]. i c i t e.v idence tha t Ap p e 11 a nt
attem pted to i n t i m i da te c ompl a in ant sho rtl y be. f o re trial , an d he fail ed
to ca It av a i 1 a b 1 e w i tn e s s e s to sh ow that he r- te s t im ony wa s in c o r r ect i n
p e r t i nent par t : (co mp lain ant sta ted at tri alt her was wh ite stuf f on the
i n s i d e of her legs, b ut d u r i n g h er fore nsi c in terv i e w s h e di d no t men tion
that impo rtan t fact ).                 Tr ial c o u nsel fa ile d to use c o m p 1 aint ant ' s vid eo -
taped r e c anta tion ; hi fai led to u s e c o m pla inan t ' s forens ic i nter v i e w to
demon str a te t he va 1 id i ty of A ppe 11 a n t ' s de fens e                     an d  toe stab 1 i s h subs tant
i a 1 q uest ions conce rn ing comp lai nant ' s ere dibi 1 i t y ; and he f a i 1 e d to call
c o m p 1 aina nt         s tep- mo ther ( Je nif e r Whit e) to c on tr a d i c t key asse r t i o n s
that        comp lainant            ma de


                                       RELATIONSHIP             AND      CHRONOLOGY


Complainant was                 Appellant's daughter                      and her mother was Lavondra Draper.
At the time of Appellant's trial in April of 2013, Appellant was 29 years
old, Draper was 27, and complainant, who was from in 2000, was 13.  App
ellant and Draper never married, as the State pointed out in its opening
statement.  Appellant and Dr a;} ar conceived comp lai. nant when Draper waa
13 years old. (Jenifer White is Appellant's grilfrind).
                              RELATIONSHIP       AND     CHRONOLOGY
                                            (continued)

     Complainant lived with Appellant until 200B, when                                  she and her
younger sister, Ashanti, went to live with Draper, who                                  was living with
her boyfriend, Ronnie Randies, and with thir daughter,                                  Jae'niya. App
ellant re-assumed custody of                  complainant and Ashanti after complainant
accused    Randies          of sexually abusing         her.         The   charges     against   Randies
were dismissed in September of 2008.                      (RR5: 112-13, 116-18, 121, 124).

In the spring of 2010, complainant alleged that Appellant penetrated her
sexual organ with his penis and during a December 2010 investigation of
physical abuse against complianant by Draper's new live-in boyfriend,
Demarcus Carter, complainant    said that Appellant's abuse against her
included digital penetration.    During complainant's teatimony at Appell
ant's trial, complainant to Id. the jury that Appellant also sexually ab
used her in ways that did not included penetration.                                  (RR4:   51-53).

                                      Evidence    i n D D b t:ai 1


        Com_.plai.nant accused her mother's                boyfriend of sexually abuse                 in
2008,    but the charges were dismissed.

        Kim D'Avignon was a Tarrant County prosecutor who was                                 assigned to
prosecute       Ronnie       Randies,Draper's      live-in boyfriend,                 for sexually abusing
complainant in 2008. (RR5: 111, 123).  Based on testimony from a Child
Protective Services investigator, there was a 95 percent chance that the
allegations were true, since Child Protective Service evidently would have
found that there was reason to believe complainant; was forensically in
terviewed by Lindsey Dula, who had done over 6,000 interviews, * includ
ing the forensic interview of this Appellant who was convicted of the
same accusations conducted by the same Child Protective Service Lindsey
Dula. Lindsey Dula should have excused her self from the case at Bar in
regards    to    conflict       of   interest    issues.

Kim   D'Avignon        decided to      dismiss    the     charges          against    Randies,   considering
three factor:          1)    complainant was not credible,                   2)   Appellant did not re-
spon to    messages,, which           was    not how     a victim's          parent norma 11y     acted,    and
3)Randies was going to be incarcerated pursuant to a plea bargain for a
bueglary offense. (RR5: 112-13, 116-18, 121-125).

     Complainant is a slow learner and- is easily mislead into beliving
what someone coaches her to say as was done in the forensic interview
conducted by Child Protective Service Lindsey Dula who had already done
an forensic interview in the (Ronnie Randies Case, * which was a conflict
of interest due the fact "Dula" testified against Appellant of the same
abuse just afew year before conducting simular forensic interview against
Appellant       Case    at bar.

*Draper took complainant to the hospital, where they said nothing was
wrong with complainant, except she had some white stuff on her, as com
plainant told the jut y. (RR'4: 46--48). During complainant's forensic
interview she did not mention this speific detail concerning white stuff
found on her,? as r. complainant explained during her testimony to the jury.




                                                    5"
                                                    Evidence              in       Detail;       :
                                                                (continued)

     Appellant explained to Detective Henz that Appellant checked com
plainant after her five year old brother,said that complainant made him
put his         no-no inside of her.                                 (RR4:          92-93, 101;               SX-2: 12:41:00).

Detective Henzto1d the jury that he reviewed the videotape of complain
ant's forensic interview, which was not shown to the jury, but he omitt
ed that complainant went into detail about the day when Jennifer White
found complainant act:.ng out with Appellant's five-year-old son, Ausbon
Jr, which precipitated complainant being confronted and checked by App
ellant.         (RR5: 95, 101;                        RR7:       8-9;          DX^3:       21-25,           34, 41-42;              DX-4).           Jennifer
white is Appellant's mother with son Ausbon Jr., and was present when
Appellant check com piainant. It can be said beyond a resaonable fact
that Appellant had a parental purposes in checking his daughter after
learning these very important facts concerning his daughter and son.

                                                       STANDARD                OF    REVIEW


           n    re view               the     suffic i e n c y            of       the    ev idence                this    Court      cons         ider s    all
of   the       e vi dene e             in     the     1 i ghtmo st             f avorab 1 e           to    the      ve r d i c t    to    de term ine
whethe r        an   y       ra tion a1            trie r       of    fact          r e 1 y i ng      on    the      ev idence        and          reas   on ab 1 e
infere     nee s         to       be       d rawn     fr om      th   e    e v     idence        could        have        found      the       e   ssen   tial
elemen ts         o f        th   e    cr    ime bey ond a                rea      s o n ab 1e       d o u b t .    Jac kson   v . Vir gj-ni a 443
U.S.     3 07,       31 8- 1 9             ( 1979); Brook s                v   .    State      , 323        S.W.3d         893, 894 ( Tex Crim
App.     2 01 0)     .       Un der          Brooks , this                Cou rt         sho uld        co nduct          a rigo r o u s lega 1 su-
f f i c i e ncy      revi ew               t hat    qua 1 i t y o f the e v i d e n ce th at w as
                                                    foe    uses       on       t   he
presen ted.      Br ooks , 323 S .W3d at 9 1 7-1 B (Cochr an J . , c o n c u rring ) . W hile
this C ourt sho uld g i v e d e feren ce t o the respon s i b i 1 i ty of the j ury to
fairly res ol ve con f 1 i c t s in te stim ony , t o weig h the eviden ce , a nd t o dr-
aw rea s o n a ble  inf e r e n c e s from basi c fact s to u 11 i m a t e fact s , th is C ourt
should r e m ain mind ful tha t leg al s u f f i c i ency i s j u d g ed by the q u a 1 i ty of
the e v iden ce a nd b y the 1 e vel of c ertain ity th at the e v i d e n e e e ngen ders
in the f ac t fi nder ' s mind .         Br ooks , 323 5 .W.3d at 91 5 (Coc hran , J., c o n -
currin g);     see  Hoop er v . 5 tate , 21 4 S.W.3 d 9, 1 3 (Tex . Crim . App . 2007 ),
citing Jac kson , 44 3 U.S. at 31 B-1 9

       Under         Malik             v .    5t   ate , this             Court          measures           the      sufficiency               of    the     ev-
idence by            the          e1e ment s          of    the       offense             as     defined            by the hypothetically
correct ju ry char ge f or the ca s e. Mai ik v. State, 953 S.W.2d 234 (Tex.
Crim.        1997) .
           Aoo .         A hypotheti c a 11 y c orrect charge is one that accuate-
1y sets o u t the 1 aw , is author ized by the indictment, does not unnece-
ssarily in c r e a s e the S t a t ' s b u rden of proof or unnecessarily restrict
the State ' s theor ies of 1i a b i1 ity, ad equately describes the particular
offense fo r which the defendan t was t ried, and takes into account t,other
relevant f actors .      Su ch a stan dard en sures thata judgment of acquittal
is rendere d when ther e is an a ctual f ailure in the State's proof of the
crdime  rath er that a m e r e e r r o r in the jury charge submitted,
In  A p p e11 ant's c ase , the Stat e a 11 e g ed that Appellant acted knowingly
and intent i o n a 11 y , rev e n r t h o u g h the of fense can be committed by mere rec-
kless      cond u c t .                S ee    T ex.       Penal          Code           2204(f)           (providing that injury to
a    child      is       a    stat e          ja il     offens e           if       co   mmitted           recklessly and                 is       a thrid
degree         off ense               if     com   m i 11 e d    i n tention             ally or knowingly).                         While the ev-
idence         ind icated                  that    have acted recklessly with respect
                                                    A p p e 11 a n t might
to the res uIt in putt ing his f i n g e r i      nside of complainant, especially
when he ha d f i n g e rnai Is that m i g h t s c ratch her, the quality of the e v -
idence was i n s u f f icie nt to eng ender a level of certainty that Appellant
had any in tent in c a u se bodily injury
                                        STANDARD           OF    REVIEW
                                                  (continued)

     In Appellant's case, the State alleged that Appellant acted knowing
ly and intentionally, even though the offense can be committed by mere
reckless      conduct.


   The evidence was insufficient to support the conviction for digital
  penetration because there was no rational basis for concluding that
                   Appellant inserted his finger.

A pers on c ommi ts agg ravate d sexual a s s a u It o f a child if he inte ntion ally
or    kno wing lyd i g i t a 1 1 y pen etrates the se xual org an of a c h i 1 d y o unger than
fourte en y e a r s of ag e .       Te x . Penal Code       22. 021 ( a)(1 )( B ) ( i ) .    Ac cordi ng to
C o u n t One , App e 11 a n t inser ted his finger. int O         CO m p 1 a i n ant's   f ema le se x u a 1
organ on o r ab out Ju ly 29,            2009.  A p p e 11 ant r e c o gnizes that cred i b i 11 y
choice s    an d in ferenc es gen e r a 11 y r eside with in t he rea Im of juro r dis c r e
tion, but Appe 11 a n t respec t f u 11 y s ubmits tha t th e e v i d ence , when judg ed
accord ing to i t s qua 1 i t a t i ve facto rs , wa s in suff i c i e n t to su ppor t a r at-
iona1     cone   1 u s i on   tha t    he    i nserted       his    f i nger     int o          comp 1 a i n t ' s        se   x ua1    or -

gan .     Broo   ks , 323         t 91 5 (C ochran , J. , co ncurri ng) .
                               S . W.3d      a                                     Comp 1 a i n a nt
told t he j ury there w e r e o n1y two instan tanc es o f pene tratio n : p enile
vagina 1 pe netr ation on the Chuck E . Chee se d ay i n Fort Worth and d i g i tal
penetr atio n wh en she lived with A p p e 11 a n t in Arl i n g t o n        Com p 1 a i nant told
Kynnis ha W arre n , tha t Appe 11 ant us ed his pen is,,        C o m p 1 ainant tol d :• C P S In-
vestig a tor Hen derson that Appellan t only use d hi s f i n g er .             C ompl ainan t
told t he f oren sic in tervie w e r,   Lin dsey D u 1 a , tha t the Chuck E. C heese day
involv ed p e n i 1 e pene tratio n .  Comp lainan t fo c u s e d on d i g i t a 1 pen etrat ion
on the Chu ck E . Chee se day i n talk i n g w i th S ANE; c o m p 1 ainant c o n f i r m e d
penile pen etra tion w i t h o u t elebora ting .


    Moreover, there were also questions about complainant's general tru
thfulness, 'considering her admittedly false accusations against Ronnie
Randies case. E§Mri ;iif.ftfreinacousiatiidnyagainst Randies were true, the Ran
dies factor favored Appellant. Considering that complainant's claims ag
ainst Randies survived the 95 percent-certain screening process, the rat
ional conclusion was that they were true.(See factual background)

     The evidence was insufficient to support the conviction for digital
          penetration because                    Appellant had a parental purpose.

        Assuming      that the         evidence          were    sufficie nt         to         e s ta b.lish        tha   t    Ap pell--
ant inserted his finger, Detective H enz ' tes ti mony s ti 11 in dica ted that
Appellant admitted the conduct, whic h did no t invo Ive hi s s e x u a 1 or gan or
mouth, and stated that he                        acted with "parent al int ent"                               Un der       thos e       cir-
cumstances, Appellant was                        qualified for a me di cal care                          def e   nse       inst ruction
Tex.    Penal Code             22.011(d);              22.021( d);       Corn et    v   .       Stat e   , 35 9       S. W.3d          21 7,
222 (Tex.Crim.App . 2012).                        In Cornet , the Co u r t              of       Cri minal           App eals          held
that    the   trial      court        erred       in    refusi ng       a med ic al         c   are     instr ucti on ,           even

though     the    parent-defendant.did not                          ing, when the par-
                                                                 have     med ic alt rain
ent-defendant indicated suspicion of sexual ab use .             Ap p e 11 a nt i ndic ated
a medical purpose; he was concerned that cam Pi aina nt m ight e v e n nee d a
shot if she were pregnant. (RR4: 93; S X - 2 : 1 2 : 41 :0 0).        This Cou rt s h o u 1 d
f i n d "':• t h a t evidence was insufficient to show di gita 1 pe netra tion , e v en
though Appellant did not request the instruc ti on , beca use a hyp othe t i c a 11 y
correct jury charge would have inclu ded the in s tru ctio n                                             ,    an d    a    rati onal
jury would have found that Appellant did not a ct w ith a                                                    med ical          pur pose .

Malik,     953    S.W.2d       at     240 &       240 n.    5.      The    Ap   pe 11 a n t        is    cons    ider ed         t o    be     a
Mentally      Retarded Offender and could not pos si. bly                                       know n       wha t    a    medi cal
care     instruction          meant         in    legal    ter ms   .


                                                                   1
                                      STANDARD      OF       REVIEW
                                            (continued)

    Under the unique circumstances in Appellant's case, the evi dence was
insufficient to show that Appellant was not acti.ng with parental intent,
as Appellant explained. Jackson, 443 U.S. at 318-19.   To be sure, as
demonstrated Appellant would have qualified for a medical care defense
instruction in the context of an allegation of digital penetration.
Pursuant to its rigorous qualitative evaluation of the record, this Court
should conclude that a rational jury could not have concluded that App
ellant acted with intent to arouse and gratify his sexual desire.' Brooks
323     S.W.3d      at   915.




        APPELLANT          WAS   DEPRIVED    OF   HIS    SIX    AMENDMENT         RIGHT     TO   THE   EFFECTIVE
        ASSISTANCE         OF    COUNSEL   WITH    RESPECT         TO   HIS    TRIAL   ON   GUILTY       OR   INNOCENCE
 AS     TO    AGGRAVATED         SEXUAL    ASSAULT BY DIGITAL                PENETRATION         ALLEGED      IN   COUNT
                                            ONE THRU FOUR



        Appellant        demonstrates       in    Points      of    Error      One-Four     that    he    was      depri. -
ved     of    the   effective       assisance      of   counsel         in    connect].on    with      his    defense
on each count as to guilty or innocence.  Appellant discusses Points of
Error One-Four togather, since they involve a common nexus of fact and
law .


                                                    :DDITIDNALTF5CTS
                                          ADDITIONAL         FACTS



     Tri. al counsel had congestion in his Eustachian tubes during trial,
whi.ch caused him to experiece hearing problems. (RR3: 9B, 104, 123, 125,
127, 129; RR4: 13-15, 39, 52, 56, 62, 64, 67, 71, 101, 104, 121, 126;
RR5: 20-21, 43, 57, 59-60, 90, 96, 98, 121, 135, 137-38; RR6: 14,20, 23-
24, 41, 44, 52, 57; RR7: 9, 13-15, 18-19, 31, 36-37, 39, 46, 48).     Trial
counsel believed that his poor hearing "probably" affected his perform
ance. (RR7 : 13-14) .

The     record      demonstrates:


        *    Trial counsel had trouble hearing' prospective jurors, and he re
             quired c1arifications from the tri.al court in exercising his
             strikes. (RR4: 13-14, 39,47, 50, 52, 64-65, 68-70; RR5: 131; RR7:
             1 3-14) .

              Trial counselhad substantial difficulty in hearing the testimony;
              he    "wasn't really sure that I knew exactly what [witness] were
              saying, ":even after they repeated their responses to his question;
              ions.        (RR4: 13-14, 39, 47, 50, 52, 64-65, 68-70; RR5: 131; RR7:
              1 3-1 4) .

                                                         ?
                       SIX   AMENDMERNT    RIGHT   TO    COUNSEL
                                     (continued)

                                ADDITITIONAL      FACTS


          *   Trial counsel spent much of hi s cross-examination time simply con
              firming testimony given by the State's witnesses.   The problem was
              evident during   his   cross-examination       of    the    Sexual   Assault   Nurse
              Examiner and of the CPS investigator,           Jerald Henderson and Britt-
              ney Payton.    (RR4: 120-26;    RR5 : 19-21,        57-60).

          *   Trial counsel evidently did not hear Detective Henz mention Appe
              llant's explaination that complainant was acting-out, which Detect
              ive Henz considered to be questionable.  Trial counsel did not cl
              arify that complainant went into detail during her forensic inter
              view, about her acting-out with Appellant's five- year-old son.
              Trial counsel did not challenge Dective Henz' suggestion about the
              absence of support for Appellant's explaination as misleading, since
              Dective Henz reviewed the forensic videotape.  (RR4: 106; RR5: 95,
              101; RR7: B-9; DX-3: 21-25, 34, 41-42; DX-4; APX$B).

          *   Trial counsel had trouble hearing "anything" that the soft-spoken
              complaonant said; for example, he misunderstood complainant to say
              that she did not make allegations against Roonie Randies. (RR4: 13-
              1 4, 39, 47, 50, 56; RR5: 131 ) .

          *   Tri.al counsel's inability to hearing complainant evidently contri
              buted to his unintentional elicitation of testimony from complain
              ant that Appellant went to look for her at her school during the
              week or two before trial, i.e., that Appellant was attempting to
              intimidate her or to otherwise influence her testimony. (RR4: 39,
              52, 64-65, 6B-70).  Trial counsel testifed at the motion for new
              trial hearing that he asked.about Appellant going to complainant's
              school in order to prevent the State from asking the quest:.on, but
              the record shows that the State had already completed its direct
              examination.  (RR4: 59, 65-68; RR7: 25).

          *   Trial counsel did not offer available testimony from the cousins
              to demonstrate the falsity of complainant's testimony about seeing
              Appellant at her   school.   (CR:    676-80;    RR7:       B;)T":    "

          *   Trial counsel had substantial trouble understanding the names of
              complainant's cousin-schoolmates during complainant's testimony
              E'eveh though trial counsel used their names, but not not his hea
              ring troubles , in support of a continuance motion that he filed
              the week before.   (CR: 543-44; RR4: 71).

          *   Trial counsel's inability to hear might have been related to his
              not challenging the testimony that a finding of reason to believe
~--~"r-       CPS means that the investigator is 95 percent sure.  (RR7: 15-17).
              If counsel had objected, he would have urged that the testimony was
              overly prejudice.  (RR7: 17).

        His hearing impairment aside, trial counsel was hesitant to use her
statements from her forensic interview, even though trial counsel believed
that her testimony was "not the same." ( R R 7 :2 2 ) . Trial counsel did not want
to use complainant's inconsistent statements to support his theory, or to
impeach her,      for fear of    "badgering."      (RR7:   22-23).


                                                    <?
                             SIX   AMENDMENT       RIGHT     TO    COUNSEL
                                            (continued)

                                     ADDITITIONAL          FACTS


   Trial counsel chose              not to        use   complainant's        interview to       illustrate:

    *    Tri.al counseldid not recall if complainant mentioned in her for
         ensic interview that Appellant manipulated her into a c fc>i n g Randies.
         The videotape demonstrated that complainant did not unambiguously
         disavow her allegations agai.nst Randies.  At a certain point, com
         plainant confirmed that Randies put his stuff in her, and she said
         that complainant's mother caught him.   Trial counsel did not beli
         eve that there was value in showing that complainant was truthful,
         with respect to Randies, since showing that Appellant did not co
         ach complaiant "doe.s not mean that it did'nt happen" with Appellant
          (RR7:2B-29;APX^!fl).
     *   Dective  Henz was incorrect that Appellant lacked support for his
          parenting theory, since complainant discussed her acting-out ep
          isode in detail.                APX C'B )•
     *   Complainant made various statements that would have been contrad
         icted by Jennifer White;  Complainant di.d not report abuse to
         Jennifer; Jennifer did not see Appellant penetrate complainant
         with his penis; and Jennifer and others saw or were present when,
          complainant checked complainant by look:.ng at her only.                                   (RR7 :8•;
          RR8:    DX-2)




Tri.al   counsel      also     cross-examined           Dula      about   Dul a's   2008   interview     with
complainant regarding Ronnie Randies.                             (RR3: 103).       Dula conceded that
complainant alleged penile-vaginal penetration with respect                                    to   Randies,
the same as complainant alleged with respect to Appellant.                                     (RR5: 105).       >
Dula also       conceded that complainant was                      very detai 1 -oriented concern:.ng
the sensory and peripheral details involving the Randies abuse, and Dula
agreed that a child that was coached would not be able to provide sen
sory and peripheral detail.  (RR5: 86, 105-07).

     *    Trial counsel            did    not have      Draper      interviewed to         determine   if she,
          like Jennifer,            would have denied complainant was really telling
          the truth. (APX «JftJ1 2-1 3) .               Complainant never complied with Dula 's
          request for her to               explain whether Appellant came''downstairs na
          ked as the only time when Appellant put his privacy inside com
          plainant or whether it was Jennifer walked in. APX ^ 1!3) . Diila's
          testimony that complainant was "very consistent" was leading. (RR5
          81-B3,      89).

     *    The two instances of abuse that complainant deeribed contradicted,
          her testimony.  During her forensic interview, complainant told
          Dula, the interviewer, that Appellant put his privacy part into'
          complainant to "check" her in the living roon in the house in Fo-'
          rt Worth in 2009, which was witnessed by Jennifer White, and she
          said that Appellant put his finger inside of her in 2010 in the
          living room in            the    Fort    Worth   house      before    they went      to   a party
          at    Chuck    E .   Cheese      (RR5: 80-B7; APX <^3-4, 6-13). Complainant
          told    the    jury that the abusive acts were penile-vaginal penetrat-
          ion    on    the Chuck E  Cheese day and penile penetration at their'
          house       in Arlington in 2009.  (RR4: 26-50) .

                                                        10
                                      SIX      AMENDMENT               RIGHT          TO    COUNSEL
                                                           (continuued)

                                                     Addititional                 Facts


  *  Complainant's testimony at trial about, "white stuff" was new; she
did not mention anything about white stuff in her forensic interview,
     much less in her statements to any of the State witnesses.   Trial
     counsel decided not to address the inconsistency, because it was
            too graphic.                 (APX;        RR4:        46;       RR7:       31;       APX).                                               ,



Counsel did not recall the specific reasoning for not having Jennifer
White testify that she did not see Appellant penetrating complainant m:
with his penis, as complainant alleged , but counsel chose not to call
Jennifer, because he decided, after discussing it with Appellant, that
it would have been counterproductive.                                                  (RR7:           25-26,       44-45).

            Ins tead   , tr ial co u n s e 1                    con duct ed            a    lim i ted         c r o s s - e x a m:.   nati on       of
comp lain         ant , whi ch bro ught                      out       all       the       inco nsis tenc ies              that        he     could
thin k       of       wit hout        appea      ring        to    b e      ba   dger ing . (RR 7: 2 2-23 ).                          Coun s e 1     be -
1 i e v ed    t hat          aski ng      too        man   y • spe c i f i       cs m ight  be a mi spla ced                          appr    oach ,
sine e    co mpla inan t   dido not appea r to und erst and spec i f:. c s     ve ry  w ell.
(RR7 : 24 ).      Coun s e 1 o b tain ed an add miss ion from c o m plai nant tha t corn-
p 1 a i nant was unt r u t h f u 1 in a co n ver sati on w ith her Aunt Lam e sha when
comp lain ant deni ed tha t Ap p e 11 a nt h ad b een to h e r s choo i;         c ompl ainant
said it was okay to li e           so m e t i m e s , if n eed be . (RR 4: 7 3).    Com plainant
also        tes tifi ed          t hat      sh   e    ne   ver     t old         lies ,       ex cep     t    she     agr eed         that     she
got        into       tro u b 1 e     for      t e 11 i    ng     th   e    po lice         tha t       Ra ndle s      to uche d         he   r , since
he    w as    i   n    ja il     at      the     time .         RR4 :       60 ).          Comp lain ant deni ed                 t hat        she    ch-
ange d       he r      s t ory      on    Feb    ruar      y 6,        201 2      to       say  that App e 11 a nt            nly checked
                                                                                                                                 o
her        with       hi s    fin ger ,        a nd    t hat       h   e    on   ly    d id      i t    on   ce .   (RR4 : 63 , 65 -67) .
Comp lain ant reit erated                            tha t      her        tes timo ny           w as    t hat      Appe llan t to uched
her with " [h ]is p r i v a t                        par t      and        his    han d."          (RR4 :63)

     Trial counsel also cited badgering-type concerns in explaining his
reasons for not using a videotape taken in a school cafeteria in 2010
or 2011           wherein complainant recanted all of her allegations against App-
ellaht.           (RR7: 7; 10; RRB: DX-2: Attachments 1-2, 9).  Trial counsel was
concerned              that      use      of     the       cafeteria              video          might        have     been      counterprod
uctive.               Trial      counsel             did     not       make       a    final           decision        not     to      the     video
until trial.  Trial counsel did not bring the videotape to trial, but
he denied the suggestion that he could have used it if he wanted to.
(RR7: 10,              43; RRB: DX-2 Attachment 2: 6-7 Attachment #: 5-6).  The
Cafeteria              Video would have shown complainant answering questions in part
as    follows:


~ Q.         ...But like I was saying your - your daddy said he missed y'all,
             and so I told - you - what you was telling me that - did you -
             did you say he did anything?,

     A .     No .


 [J§ He didn't do nothing to you?

     A.      Huh -uh .

     Q.      Promise?


                                                                           n
                         SIX    AMENDMENT      RIGHT      TO    COUNSEL
                                         (continued)

  A.   I promise.

  Q.   Oh, okay.        So he    didn't - oh, me and my mouth.  Get close so                   I can
       whisper to       you.     So he - so he didn't touch you or nothing?

  A. (Moving head side to side.)

  Q.   Huh?

  A. (Moving head side to side.)

  Q. Oh, okay.  So why do people say that ?                          They just probably trying to
     make you not be with your f ami1y .

  A. I don't know.            Now,     a lady had asked me - she had ask                me what my
       daddy    did    "cause    she    didn't know           about him.

  Q.   Uh-huh.


  A. But      that lady was       just - that lady was              just asking me something -

  Q.   Uh-hnh.:

  A. --and I was lik, no, (inaudible).  And then that's when we had to
     leave and I had to go back to the boy's dress club. And then -

  Q.   But    you    didn't tell her         that   he    -

  A.    Huh-ah.


  Q.    Oh.    Okay.    "Cause    I"m like why           would he    do    that and -

  A.    (Shrugging shoulders).

  Q.    That's crazy.  They just - and I"m like he - I"m like he - they've
        been staying with their daddy forever.  When your mamma was over the
        road,       I mean,   y'all    was    staying with         y'all    daddy,   right?

  A. (Moving head up and down).

  Q. Yeah.      So your daddy didn't touch you nowhere?

  A. (Moving head side to side).

RR8:   DX-2:    Attachment       1).

    Trial counsel testified that he di.d not object to the State using
various hearsay under the outcry exception to hearsay because he would
only object in front of the jury when he really needed to, although he
did not recall making a specific dec:, si on not to object about overuse
of the outcry exception. (RR7: 17-20).




                                                          U
                  SIX   AMENDMENT     RIGHT      TO    COUNSEL
                               (continued)

    The jury charge does not include any medical defense instructions,
although in his closing argument, trial counsel ur ged that Appellant
made a parenting decision when he looked at complainant's sexual organ.
(CR: 5B8-604; RR5: 129, 140).       Trial counsel urged that complainant was
not credible because the suspiciousness of complainant using language
about "rape" in her outcry to her teacher, the falsity of the claim that
complainant made against Randies, and her use of falsity in avoiding a
discussion with family members about Appellant going to complainant's
school. (RR5: 135-41).     Trial counsel told the jury that he was "not go
ing to try to convince you of the many things that I've seen that are
inconsistent.' (RR5: 140).      Trial counsel's intent in final argument
would have been to show inconsistency in the allegations and bring out
the evidence that best favored Appellant.                  (RR7:   32).

                           STANDARD    OF   REVIEW


                 INEFFECTIVE    ASSISTANCE            OF   COUNSEL


     Th:.s Court reviews a challenge to the denial of Appellant's motion
for new trial based on    effective assistance under an abuse of               discretion
standard, reversing "only if the trial judge's opinon was clearly err-
onous and arbitrary."   Riley v. State, 378 S.W.3d 453,457 (Tex .Crim .App.
2012).   This Court views the evidence in the light most favorable to the
trial court's ruling; it must not substitute its judgment for that of the
trial court; and it must uphold the ruling if it was within the zone of
reasonable disagreement.      Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.
App. 2004). If there are two permissible views of the evidence, the fa
ctfinder's choice between them cannot be clearly erroneous. Riley, 378
S.W.3d at 457. Thus, a trial court abuses its discretion in denying a
mot:.on for new tri.al only when no reasonable view of the                record could
support its ruling.     Webbv. State,       232 S.W.3d 109, 112 (Tex.Crim-.App.
2007) .

     In applying the abuse of discretion standard, this Court should re
main mindful that the focus of Appellate review of an effective assist
ance cla:.m is the objective reasonableness of counsel's actual conduct in
light of the evidence of the entire record.   Andrews v. State 159 5.W.3d
9B, 101 (Tex.Crim.App. 2005).       When no reasonable trial stategy could
justify his conduct, counsel's performance falls below an objective st
andard of reasonableness as a matter of law.    Lopez v. State, 343 S.W.
3d 137, 143 (Tex.Crim.App. 2011 );Andrews , 159 S.W.3d at 102.

                 EVALUATING    INEFFECTIVE        ASSISTANCE


     To prevail on a claim of ineffective assistance of counsel, an App
ellant must show that (1) counsel's performance fell below an objective
standard of reasonableness and (2) but for counsel's unprofessional err
or, there is a reasonable prebability that,the result of the proceeding
would have been different.  Strickland v. Washington, 466 U.S. 668,669,
104 S. Ct. 2052, 2055-56, 80 L. Ed. 2d 674 (1984); Mitchell v. State 68
S.W.3d 640, 642 (Tex.Crim. App . 2002). A defendant has the burden to est
ablish both prongs by a preponderance of the evidence; failure to make a
show:.ng under ei.ther prong defeats        a claim for ineffective assistance.
Mitchell, 68 S.W.3d at 642.




                                            13
                                           INEFFECTIVE                           ASSISANCE                          OF       COUNSEL


                                          EVALUATING                           INEFFECTIVE                          ASSISTANCE


suffered              hearing               impairment,

              Tri a 1      co unsel                 had          a       d   uty     to       e ffec tuate                            Appe 11 an t           's    right s             to       cou       nsel
and       to     ha   ve       e   ff ect ive                as si stan ce                    o   f    co unsel.                           Tr ial          coun    sel        n eede d            to          he-
ar    t he       st a tern ents                 of          t he         c ourt      , th e            St       ate           , the              pros      pect ive           j uror s            an      d    the
witn      esses           in       order            to       f unc tion                  as       coun          se1           w i thin               the    mea    ning           of    t he          S ixth
Amen dment .               Bu rdine             , 26 2               F. 3d          at    34      9 (h o 1 d i n g tha t                              tr ial       couns          el's          pos       tpra-
dial          naps        did       not         unde rmin e                     th e      ri      ght to cou nsel                                    bee   ause        ther       e    wa s       a       se-

cond -chai r               de f ense                att      orne            y).         It       woul d                have              bee    n    an    a b u se      of          dis cret ion
for       the       tria1           cour        t       to    den y a prop er                               c   ontinu a n c e                       mot ion       demon stra ting                            su-

ffic ien t            caus         e .      I   n       Ap   pell ant ' s ca se                             t here                w   as       n o    r e ason     able           s tra     tegi c
basi s         in     tri a 1            cou nsel                dec idin g               no t         to           seek              a    co    ntin      uanc    e     bas e d        o n       hi      s

hear ing            i mpai rment .                          C on si deri             ng       t he          e ntiret y                     of        the    cir cumst             ance      s ,       c   o-

unse    1 's        p erf o rmanc e
                                 in fai ling to seek a         con tinu ance  fel 1 bel ow a n ob
ject ive s tand ard o f re ason able n e s s as a matt er o f la w . s e e A1 dric h v .
Stat e,      29 6 S. W.3d 225 , 245 , 24 9 (T ex . A pp .) .        Sin ce t rial c o u n sel ob je ct-
i v e 1 y unr e a s o nable det ermi nati on t o f o rgo a con t i n u a nee reque st d irec tly
unde r m i n e d Ap p e 11 a nt ' s rig ht t o   co u n s e 1, the r e s ult of t he pr o c e e ding
cann ot      be e r e d i t e d as reli a b le , an d th is Cou rt s h o u 1 d pr e s u m e tha t th e
erro r     aff ecte d the out c o m e , in sat isf a ction of t he s e c o n d pro ng o f St r-
ickl and . Stri c k 1 a n d,-4 66 U .S. at 6 92; Cronic , 46 6 U . S. a t 654                 B urdi ne ,
262 F.3d at 3 49.              As n ote d in Burd ine,       a law yer who cann ot li s ten can
not       repre sent                      Bu rdin e                  26 2       F. 3d         at       34 9.                  Mo      reo v      er ,      ther        woul d          be '" har          m

from          deni al          of        the        con      tin u           ance        mot      ion ,             and           t he         S trie klan         d     pre j u d i ce               p   r-

ong       would           be       satis fied ,                      si n e e        the          reco          rd           ref lect            s    an    aba ndanc e                wh   ere           tr-
ial       couns       el's          hear        ing           affe cted                  the          rep resent atio n                               to    the        exte nt          t hat             con-

fide nee            i n    th e          out c o m e             is          unde rmin ed                   d ue             to       the        heig hten ed             pr obab i ]. i t                y
of    a       diff eren t                out c o m e


failed to                 use complainat's videotaped recantation,

               Trial           coun       sel           m ay         m ake          strat egic                      dec       :. s i o n s           as    to     wh e the        r    an   d     how
to    c   r o s s - e x    amine            witn            esse         s ,    a nd      it          i s       vali d                to       take        conce rns              into          acc-

ount          about        alien ating                       the          jur y . C oble                            v    .    State            , 50 1       S.W.         • 2d         344 , 346.
Comp lainant                   shou Id              ha ve            b   een  impea che d                           wit h             her        rec      antati on           i   n    Ap pell-
ant '     s    case        under            a       s   e   n a r i o          th at      wa s         si m i 1 a r                   to       the        situat ion              in    E verage ,
B93       S .W .3d         at       22 1 -23.                    A       tran       cri.pt            cou       Id           h a ve        b   een        pre par ed          t   o    ma   ke        the           «
impe achment effi cient , an d                                                 to    miti         gate              cou       nsel ' s               c o n.c e m s       abo ut   lienating
                                                                                                                                                                                        a
that jury , was o b j ect i v e 1 y                                            un r e a s o nabl                e       co    nside            ring        the     c   ej>tr alit y of the
reca      ntation .                 Th e        vid         eo       a   nd     t   ransc         ript              of        it          a1   so     c   ould ,h a      ve       been          used           to
conf root             th e         Sta te           wi tnes              ses        for       t heir                o m p 1 e te a nd bia sed in ve s t i g a t -
                                                                                                                    inc
ion .            The       video            and             tran scri               pt    wo u.l d              have part ic.ul arly s uppo r ted a ch -
a 11 e    nge       the        fore nsic                    inte rvie wer ' s                         cla ims                 that             she        did     no t    ex pres s               s u b -
stan t i a 1          co nf usi on                  du ring                  her     inte rv i e w                      of        comp lain ant.                       Sine e          th   ere           was

a    su   b sta nt i       a1       q u estio n                  ab out             wheth er                t   he           j ury         w ou1d          have        acqu itte d                if          it
knew          about        the           r ecant atio n ,                       w hich            s ati sf ie d                       the        sec      ond     pr ong          of    S trickland


failed to use complainant's forensic interview to demonstrate                                                                                                                         the validity
of complainant's concerns about complainant acting out,

              Yet     it was              true              that             there was                 a problem-with                                     complainant                  acting-out
wi.th Appellant's son,                                       which lead to Appellant examining complainant,                                                                                               as
complainant explained in detai1 during her forensic interview.




                                                                                                  J1
                                INEFFECTIVE          OF    COUNSEL
                                         (continued)

                                     STANDARD       OF    REVIEW


     FAILED TO         USE    COMPLAINANT"S forensic               interview to better         impeach
complainant,

    Similarly, it was not objectively reasonable for counsel not to
specifically confront complaiant about the basic differences between
her testimony and her statements during the forensic interview.

       failed to use complainant's                   forensic      interview to better         impeac
the   forensic examiner,

      As   already noted,           complainant explainations were                  so   confusing and
suspicious      that    the    forensic       interviewer,         Dula,.   twice    asked   whether
the claimed abused "really did happen," yet Dula told the jury that
she perceived that complainant's statements were consistent.

      Allowed    the State to          abuse the         outcry exception,

    Jennifer Whi.te was the outcry witness with respect to the                                 vaginal
and penile penetration, according to complainant's statements                                  during
her forensic interview,               and Jennifer was also involved in responding
to the touching in            the    house    in    Arlington,      according       to   complainant's
testimony.

      failed    to   obtain     a    medical       defense   instruction.


      Appellant's theory was             that he          acted only to      the extent of con
cern for complainant's well-being,                        which thus    limited his viewing her
sexual organ without any touching.                         Appellant    was eligible for a med
ical defense         instruction.       Cornet,          359 S.W.3d at      222;    Tex.Crim.App. 1999)

                                             CONCLUSION


         Under a Strickland analysis considering all of the factors
raised, this Court should determine that substandard conduct was rend
ered and that Appellant is entitled to reversal bacause prejudice is
presumed and because there is reasonable probability that the outcome
would have been different but for the unprefessional errors.   The evid
ence against  Appellant was weak to beg:.n with, due to complainant's
false allegations against Randies, and if her accusation against Randies
were considered truthful, the State case might be even weaker, since
Appellant would not have coered complainant under that scenario. Since
the State's weak evidence would have been substantially weakened if
trial counsel had rendered effective representation in the specified
ways, this Court should conclude that Appellant has met both prongs of
Strickland.


                                               PRAYER

     WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
will sustain Points of error in regards to One thru Four, reverse the
conviction and render judgment of acquittal as the Court deem apptoper;
iate under these circumstance in Appellants arguments.   Appellant fur
ther prays for this case to be remanded for a new trial.   Appellant
praysfor any such relief he may be entitled.                                Respectfully submitted
                                                     IS~
  ^;




/S^S^^A^cJlJy J^uJ^d
                      APPENDIX-ONE




                BRIEF   FOR   APPELLANT



             Ausbon   Osborne   v.   State




Summary of   December 22, 2010 Forensic Interview
                 (OF Complainant)
                              PRAYER      FOR   RELIEF

        For the reasons   stated above,         it is respcetfully submitted that

the Court of Criminal Appeals of Texass should grant this Petition for

Discretionary Review.

                                                     Respectfully submitted,




                                                     AUSBON      OSBORNE
                                                     T.D.C.J.#1B5381 7
                                                     379   FM    2972   W
                                                     Rusk,      Texas 757B5


                              EXHIBIT/APPEN'DIX.

                           . Brief for      Appellant
                    Ausbon Osborne V. State, Appeal (CSiminal Court of Appeals)
            Summary of December 22,         2010 Forensic interview

                          ATTACHED   AS    APPENDIX-ONE




                      CERTIFTCATE'.'OR iSERVICE ••


     The undersigned Appellant hereby certifies that a true and;correct
copy of the foregoing Petition for Discretionary Review has been mailed
U.S. mail, to the Office of the Criminal District Attorney for Tarrant,
County, (Fort Worth TX)

                                                   ,DN THE p*}              D   OF


201 5                                                (JU
                                                    (APPELLANT/DATE)
                                                                  APPENDIX ONE
                                                             Brief for Appellant
                            Ausbon Osborne v. State, Appeal No. 07-13-00156-CR

Summary of December 22,2010 Forensic Interview

 1.   At the beginning of complainant's hour-long December 22, 2010 forensic
      interview with Lindsey Dula, Complainant said that she remembered being
      interviewed at the Alliance for Children about her step-daddy sexually
      abusing her; it was "about another story, what happened," not about "this
      story." (DX-3: 1; DX-4). Towards the end of the December 22, 2010
      interview, complainant stated that, when she was eight years old, her step-
      daddy "put his stuff - he put his stuff in me like my daddy got - he put his
      stuff up in me...like my daddy did and it hurt." (DX-3: 52-53; DX-4).
      Complainant also stated that her step-daddy was "just pretending like he was
      going to do me like that but he didn't do - he didn't put it in me and stuff,"
      but she added that her mother, Lavondra Draper, "catched him. Then I had
      told her and she said, okay, I'm going to call the police. He was in jail for a
      long time and then he got out yesterday. (DX-3: 52-53; DX-4).

 2.   At the beginning and end of complainant's interview with Dula on
      December 22, 2010, Dula confirmed that complainant understood that the
      interview that time would be about "daddy" and not about Ronnie Randies.
      (DX-3: 1, 5, 14, 52, 60; DX-4). Complainant also understood that there
      would be a audio-video recording to show "are we doing bad things or doing
      right things." (DX-3: 1, 5, 14; DX-4).

 3.   When Dula asked complainant to talk about Appellant, complainant said that
      complainant went to a party at Chuck E. Cheese's that was for complainant's
      niece.   (DX-3: 13, 44; DX-4).        Appellant drove complainant and
      complainant's two younger sisters from Appellant's house to the party.
      (DX-3: 13; DX-4). The children were in the car ready to go, but Appellant
      called complainant back into his house. (DX-3: 13, 46; DX-4). When
      complainant went inside, Appellant told her to give him a kiss on his lips,
      which she did. (DX-3: 43-45). Appellant then asked her to go upstairs and
      find him a black shirt or another clean shirt.         (DX-3: 13; DX-4).
      Complainant brought a black shirt downstairs to Appellant who was in the
      living room. (DX-3: 13, 20; DX-4). Appellant then told complainant to pull


                                                                                  75
     her pants and panties down so he could "check" her. (DX-3: 13, 20, 44, 46-
     47; DX-4). Complainant was scared to pull her pants down, but she did
     when Appellant said that he was fixing to get an extension cord implying he
     would hit her with it. (DX-3: 47; DX-4). Complainant told Dula that
     Appellant "stuck his finger up me" when he "checked" her "privacy part,"
     which she uses to pee not to poop. (DX-3: 13, 15-16, 44, 47; DX-4).
     Complainant told Appellant that it "hurt." (DX-3: 13; DX-4). Complainant
     told Dula that Appellant said that it hurt because complainant had "been
     doing something with a boy or something."             (DX-3: 13; DX-4).
     Complainant told Dula that Appellant said that it would not hurt if she had
     not been doing anything with a boy. (DX-3: 13-14, 47; DX-4).

4.   Complainant indicated that she told Jennifer White, her stepmother, that
     Appellant put his finger inside of complainant before he took her and her
     siblings to Chuck E. Cheese. (DX-3: 46-48, 47; DX-4). Complainant
     reported to Dula that complainant told Jennifer about the Chuck E. Cheese
     incident even though Appellant told her not to tell anybody, although
     complainant later clarified that Appellant "didn't tell me don't tell nobody."
     (DX-3: 48, 60; DX-4). Complainant told Dula that complainant told Jennifer
     about the Chuck E. Cheese incident on the same day when it happened, and
     complainant confirmed that Jennifer was the first person complainant told.
     (DX-3: 48, 51; DX-4). Complainant explained to Dula that Jennifer told
     Appellant what complainant said. (DX-3: 48; DX-4). Jennifer explained that
     it meant something if it did not hurt. (DX-3: 47; DX-4) (emphasis supplied).

5.   In response to being confronted by Jennifer, Appellant went to Lavondra
     Draper's house to ask complainant why complainant lied about the Chuck E.
     Cheese day. (DX-3: 48, 51; DX-4). Draper said "that's why my kids don't
     like going with you," because you always doing something to them. (DX-3:
     48-49, 51; DX-4).

6.   Complainant told Dula that she was nine years old and in the fourth grade
     when Appellant checked her before they went to Chuck E. Cheese. (DX-3:
     15-16, 18, 20, 23, 43, 49-50; DX-4). Appellant only checked her once when
     she was nine, which was on the day when they went to Chuck E. Cheese, but
     as complainant explained, the checking happened "all the time" after she
     was 10. (DX-3: 15-16,18,49; DX-4).

7.   Complaint also said that the first time Appellant "checked" her was after
     Jennifer White went to a store.        (DX-3: 15-16, 18, 20, 23; DC-4).

                                                                                76
     Complainant later said that the time when Jennifer went to the store was
     when complainant was ten. (DX-3: 41; DX-4).

8.   Complainant was nine years old on the day when Jennifer went upstairs
     before Jennifer went to the store. (DX-3: 2T-22; DX-4). Complainant was
     upstairs with her three younger siblings: an eight-year-old girl, a five-year-
     old boy and a one-year-old girl. (DX-3: 21-22; DX-4). The children were
     playing "babies," a game where complainant's siblings were her children.
     (DX-3: 21-22; DX-4). Jennifer "said we was doing something and then she
     checked him," i.e., complainant's younger brother. (DX-3: 21; DX-4).
     Jennifer "said his privacy was up - sticking up and - and then she said if it
     stick up, that mean you've been doing something with somebody." (DX-3:
     21; DX-4). Complainant's little brother told Jennifer that complainant told
     him to do something to complainant; complainant explained to Dula that
     "we didn't do nothing, really." (DX-3: 22, 42; DX-4). When Jennifer went
     downstairs and informed Appellant about what complainant's brother said,
     Appellant told complainant's little brother to "tell the truth," but he "told a
     lie." (DX-3: 22-24, 41-42; DX-4). It was true, however, that a seven-year-
     old boy went to Appellant's backyard and showed pictures of naked girls to
     complainant. (DX-3: 55-56; DX-4).

9.   After Jennifer left with complainant's siblings to go to the store, Appellant
     called complainant downstairs, and he asked complainant what
     complainant's eight-year-old sister would say about the statement that
     complainant's little brother made. (DX-3: 34; DX-4). Appellant told
     complainant to get the extension cord, as complainant explained to Dula,
     because Appellant was going to whoop complainant. (DX-3: 25, 42; DX-4).
     Instead, Appellant turned the TV off and "checked" complainant, (DX-3:
     23-25; DX-4). Appellant checked her in the living room. (DX-3: 23-25;
     DX-4).

10. Complainant told Dula that a separate time was when Appellant first
    checked complainant; it was "in my sister's room," or rather when
    complainant was downstairs, but the TV was on, and complainant was
    watching the Disney Channel. (DX-3: 25-26, 35; DX-4). Complainant told
    Dula that Appellant went upstairs, took his clothes off, came back
    downstairs, and sat on a couch in the living room next to the couch where
    complainant was sitting. (DX-3: 27-28, 32-35; DX-4). Appellant told
     complainant to take her clothes off and lay down, as complainant explained.
     (DX-3: 28, 33; DX-4). Complainant told Dula "then he had checked me

                                                                                 77
    again. He had put his - no, he - he had put his privacy part in me," which
    hurt. (DX-3: 29-30, 33-34; DX-4). Complainant apparently meant to clarify
    that Appellant did not check her on the first occasion when he sexually
    abused her; Appellant "just put his privacy in me." (DX-3: 31; DX-4).

11. According to complainant, Jennifer came in when Appellant put his privacy
    inside of her. Jennifer "screamed," demanding to know "why are you doing
    your child like that?" (DX-3: 30; DX-4). Jennifer saw "when he put his -
    when he almost put his privacy in" complainant, "but he really did. He said
    he almost did, but he did." (DX-3: 30; DX-4). Jennifer saw Appellant put
    his stuff inside of complainant, but nobody saw the time when Appellant
    was checking complainant, as complainant explained to Dula. (DX-3: 50-
    51; DX-4). Jennifer screamed "why are you doing that to your child," and
    Appellant told complainant to put her clothes on, because Jennifer was
    always calling the police on Appellant. (DX-3: 38, 40; DX-4). The police
    went to Jennifer's house, according to complainant's understanding from
    talking with Jennifer, but complainant did not talk with them, because
    complainant was at Appellant's house. (DX-3: 39-40; DX-4).

12. When Dula asked complainant to clarify where complainant was when
    Appellant put his privacy inside complainant, complainant said "[i]n my
    sister's room - no, in his room." (DX-3: 36; DX-4). Dula responded: "I'm a
    little confused. Because just a minute ago you were telling me that he told
    you to take your clothes off and lay back on the couch...[s]o I'm - I'm
    confused. Is the stuff that you 're telling me about your dad, is that stuff
    that really did happen that you remember in your own head?" (DX-3: 36;
    DX-4) (emphasis added). Complainant replied that she did not remember
    where she was in Appellant house when he put his privacy inside her,
    because she was confused about whether she was nine or 10, but it "was
    probably upstairs or downstairs." (DX-3: 36-37; DX-4). When Dula asked
    again about the location, complainant said it was downstairs on the couch.
    (DX-3: 36-37; DX-4). After Appellant put his privacy in complainant's
    privacy, Appellant told complainant to get dressed, go upstairs to his room,
    and watch TV. (DX-3: 38; DX-4).

13. Dula was also "a little confused" about whether there was more then one
    time when Appellant put his privacy into complainant's privacy. (DX-3: 38;
    DX-4). Dula explained to complainant that complainant described an
    incident when Appellant came downstairs naked as the only time when
    Appellant put his privacy inside complainant, but complainant also said that


                                                                             78
    Jennifer walked in during the only time when Appellant put his privacy into
    her privacy, which was when complainant was nine years old. (DX-3: 37-38,
    40; DX-4). Complainant did not explain; complainant instead further
    discussed the time when she was nine when Jennifer came into Appellant's
    house. (DX-3: 38-40; DX-4).

14. Complainant further discussed "all the time when I go to sleep with my little
    baby sister." (DX-3: 17; DX-4). Somebody always took her pants off.
    (DX-3: 18; DX-4). Complainant did not know who took her pants off, since
    a lot of people were in the house. (DX-3: 17; DX-4). Jennifer asked
    Appellant why complainant always said somebody took her pants off. (DX-
    3: 18; DX-4). According to complainant, Appellant said that he took her
    pants off because they were tight, but complainant thought they were
    comfortable. (DX-3: 18; DX-4).

15. Dula left the room towards the end of complainant's interview. (DX-3: 18;
    DX-4). When Dula returned, she asked complainant: "everything you told
    me about what happened with your dad, are those things that are - are
    right, things that are true that really did happen?" (DX-3: 60-61; DX-4).
    Complainant nodded. (DX-3: 61; DX-4).

16. Complainant also confirmed that Appellant never made complainant touch
    him on his private part and nobody ever touched complainant except for
    complainant's step-daddy and Appellant. (DX-3: 53-54; DX-4).




                                                                              79
                                           3tatin>e
                                     Court of Appeals
                        »etoentlj ©tetrirt of tEexa* at iUtaiarillo

                                      No. 07-13-00156-CR



                            AUSBON OSBORNE, APPELLANT

                                                V.


                            THE STATE OF TEXAS, APPELLEE


                            On Appeal from the 396th District Court
                                  Tarrant County, Texas
            Trial Court No. 1316584R, Honorable George W. Gallagher, Presiding


                                         May 29, 2015

                              MEMORANDUM OPINION

                    Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant Ausbon Osborne appeals from his conviction by jury of two counts of

aggravated sexual assault of a child,1 one count of indecency with a child,2 and one
count of injury to a child3 and the resulting sentences of thirty-five years of imprisonment
for the aggravated sexual assault convictions, twenty years for the indecency


       1Tex. Penal Code Ann. § 22.021(a)(1)(B) (West 2013).

       2Tex. Penal Code Ann. § 21.11(c) (West 2013).
       3Tex. Penal Code Ann. § 22.04(a)(3), (f) (West2013).
conviction, and ten years for the injury conviction.4 He presents nine points of error.

We will affirm.



                                               Background


            After appellant plead not guilty to each of the four offenses set forth in the

indictment, the case was tried to a jury.             The indictment indicates each of the four

offenses allegedly occurred around the same time. The complainant is one of

appellant's several children. By the time of trial, the complainant was in the sixth grade.

While she attended some special education classes, her testimony demonstrated no

particular difficulty in communication.


            The complainant testified that when she was in the fourth grade, she told her

teacher appellant had "raped" her. The teacher testified that she asked the complainant

what happened and the child gave more details, telling the teacher of an instance on

which her father sexually assaulted her by penile penetration. Complainant repeated her

statements in a generally consistent manner to others, including investigators with child

protective services, a forensic interviewer and a sexual assault nurse examiner.

Complainant testified at trial to the same incident. Complainant also testified at trial to

other instances in which appellant put his finger inside her "private part."


            Appellant did not testify at trial. A detective and two child protective services

investigators5 investigating complainant's allegations testified appellant admitted to


            4The sentences run concurrently.
        5 During the course of the investigation into complainant's allegations against appellant, the first
investigator retired and the second investigator continued the inquiry into these allegations. Both testified
at trial.
some unusual conduct with complainant. A detective testified that during an interview

with appellant, appellant denied touching the complainant's "private parts" but told him

he had looked at the child's "opening"6 to "check" her for sexual activity because he
believed she was having sex with older boys and might be pregnant or in need of

medical care or birth control.          The investigators testified appellant made similar

statements to them.          The first investigator also testified appellant admitted he

penetrated complainant while "checking" her but said he did so only to determine

whether she was sexually active.          The second investigator testified appellant denied

digital penetration. Adetective testified appellant also stated complainant was a liar.7

        The jury found appellant guilty as charged for each offense and assessed

punishment as noted.         Appellant subsequently filed a motion for new trial alleging

ineffective assistance of counsel. The trial court held a hearing on appellant's motion

during which it heard the testimony of appellant's counsel and considered documentary

evidence. The motion for new trial was overruled by operation of law. This appeal

followed.



                                              Analysis


Sufficiency of the Evidence


         In appellant's first five points of error, he challenges the sufficiency of the

evidence to support each of his convictions.


        6The prosecutor clarified the "opening" ofwhich appellant spoke was the complainant's vagina.
       7 Complainant made an allegation of sexual abuse against another male. During punishment,
other witnesses, including the mother of some of appellant's other children, concurred that complainant
frequently lied.
Standard of Review



      In reviewing issues of legal sufficiency, an appellate court views the evidence in

the light most favorable to the verdict to determine whether, based on that evidence and

reasonable inference therefrom, a rational jury could have found each element of the

offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim.

App. 2010); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) {citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).       If, given all of the evidence, a

rational jury would necessarily entertain a reasonable doubt of the defendant's guilt, due

process requires that we reverse and order a judgment of acquittal. Swearingen, 101

S.W.3d at 95 (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992)).

We measure the sufficiency of the evidence against the elements of the offense as

defined by the hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234 (Tex. Crim. App. 1997).


Aggravated Sexual Assault of a Child


       By count one of the indictment, appellant was alleged to have, on or about the

29th day of July 2009, "intentionally or knowingly cause[d] the penetration of the female

sexual organ of [complainant], a child younger than 14 years of age who was not the

spouse of the defendant, by inserting his finger into her female sexual organ." Count

two of the indictment alleged appellant, on or about the same date, "intentionally or

knowingly cause[d] the penetration of the female sexual organ of [complainant], a child
younger than 14 years of age who was not the spouse of the defendant, by inserting his

penis into her female sexual organ."


       To prove aggravated sexual assault, the State must show (1) appellant

intentionally or knowingly (2) caused the penetration of the anus or sexual organ of a

child by any means and (3) the child was younger than fourteen years of age. Tex.

Penal Code Ann. § 22.021 (West 2013). Under Texas law, the uncorroborated

testimony of a child victim, standing alone, is sufficient to support a conviction for

aggravated sexual assault under section 22.021. Tran v. State, 221 S.W.3d 79, 88 (Tex.

App.—Houston [14th Dist.] 2005, pet. refd); Jensen v. State, 66 S.W.3d 528, 533-34

(Tex. App.—Houston [14th Dist.] 2002, pet. refd). Because appellant does not contest

the evidence of complainant's age, we address only the first two elements of the

offense.



        At trial, complainant testified to each of the elements of aggravated sexual

assault as described in counts one and two.            She testified that one day, as appellant

was about to take some of the children to Chuck E. Cheese, appellant called

complainant inside from the car to help him find a shirt. She found one and brought it to

him. "He laid me on the couch, and I tried to get up off the couch so I couldn't, and

that's when I started hollering, and that's when he pulled down my pants, and I tried to

pull them back up, and I couldn't so Ijust left it alone. And he wrapped my leg up and he

wrapped my arm up and he had pulled my panties down, and then he put his stuff at

me."8 She stated, "[h]e had sticked it in me, and he said if it hurt, that means you been


        8 At trial, the prosecutor clarified with complainant that by her use of the word "stuff in this
context, she was referring to appellant's penis.
doing something. And if it don't, you haven't. And I said it hurt, and he said, yeah, I've

been doing something." The complainant also testified to another instance in which

appellant placed his finger inside her "private part" to "check" her.


       The detective and investigators testified to statements made to them by appellant

that he "checked" complainant on a day before he took his children to Chuck E. Cheese.

He also admitted to one investigator to "checking" the complainant on other occasions.

The investigator testified appellant admitted to digital penetration of the complainant

while "checking" her for sexual activity. The forensic interviewer testified the

complainant told her appellant "checked" her by "put[ting] his privacy to her privacy" and

by "putting his fingers in her privacy." The complainant's teacher testified the child told

her that her daddy "raped" her.


       Appellant argues the hypothetically correct jury charge in this case would include

consideration of the medical-care defense, because he was "checking" complainant for

suspected sexual activity and its consequences. The Texas Penal Code provides for a

medical-care defense to charges of sexual assault and aggravated sexual assault. See

Tex. Penal Code Ann. §§ 22.011(d); 22.021(d) (West 2013). "It is a defense to

prosecution . . . that the conduct consisted of medical care for the child and did not

include any contact between the anus or sexual organ of the child and the mouth, anus,

or sexual organ of the actor or a third party." Corner v. State, 417 S.W.3d 446, 447

(Tex. Crim. App. 2013).


       Malik provides that a hypothetically correct jury charge is one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily restrict the State's
theories of liability, and adequately describes the particular offense for which the

defendant was tried. Malik, 953 S.W.2d at 240. As to defenses, a hypothetically correct

jury charge does not include any and all potential defensive issues but only those

applicable to the case.    See Cornet v. State, 359 S.W.3d 217, 228 (Tex. Crim. App.

2012) (trial court erred by refusing medical care defensive instruction).       A "defensive

issue" is not "applicable to the case" unless the defendant timely requests the issue or

objects to the omission of the issue in the jury charge.      Tolbert v. State, 306 S.W.3d

776, 780 (Tex. Crim. App. 2010). And, the question whether to include a defensive

issue is a strategic decision "generally left to the lawyer and the client." Golston v. State,

No. 06-11-00136-CR, 2012 Tex. App. LEXIS 5251, at * 21 (Tex. App.—Texarkana June

29, 2012, pet. refd) (mem. op., not designated for publication) (quoting Posey v. State,

966 S.W.2d 57, 63 (Tex. Crim. App. 1998)). Appellant did not ask for its inclusion and

therefore, the medical-care affirmative defense is not to be considered here in the

evaluation of the sufficiency of the evidence to support appellant's convictions for

aggravated sexual assault of a child.


       There is no requirement that physical, medical or other evidence be proffered to

corroborate the complainant's testimony.       See Tex. Code Crim. Proc Ann. art. 38.07

(West 2011); Wallace v. State, No. 07-09-00099-CR, 2011 Tex. App. LEXIS 1384 (Tex.

App.—Amarillo Feb. 23, 2011, no pet.) (mem. op., not designated for publication) (citing

Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (concluding that victim's

testimony alone is sufficient evidence of penetration in prosecution for aggravated rape,

without medical, physical, or other evidence)). We find the evidence sufficient to support
appellant's convictions under counts one and two of the indictment for aggravated

sexual assault of a child. We overrule appellant's second, third and fifth points of error.


Indecency With a Child


       To prove indecency with a child as alleged in count three of the indictment, the

State was required to prove appellant, with a child younger than 17 years of age,

whether of the same or opposite sex, engaged in sexual contact. Tex. Penal Code Ann.

§ 21.11(a) (West 2013). "Sexual contact" includes, if committed with the intent to arouse

or gratify the sexual desire of any person, any touching by a person, including touching

through clothing, of the anus, breast, or any part of the genitals of a child. Tex. Penal

Code Ann. § 21.11(c) (West 2013).


       Appellant argues the evidence was insufficient to show he acted with the

requisite mens rea because he was engaging in a parental purpose by "checking"

complainant. Intent to arouse or gratify can be inferred from conduct, remarks and

surrounding circumstances.       Scott v. State, 202 S.W.3d 405, 408 (Tex. App —

Texarkana 2006, pet. refd). The jury was free to believe or disbelieve any portion of the

testimony and, as evinced by the verdicts here, chose to believe the version of the

events expressed by complainant at trial. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.

Crim. App. 1997); see Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (the

trier of fact may believe witness even though his testimony is contradicted).


       The complainant testified appellant touched her genitals with his finger.          An

investigator testified appellant acknowledged at one point that he did penetrate the
complainant's genitals. The jury had before it also testimony from the detective and two
investigators that appellant said he "checked" the complainant to see if she was

sexually active. Appellant argues these statements show he did not engage in sexual

contact with the complainant to arouse or gratify his sexual desire but rather had a

parental purpose for doing so.       But, the jury also had before it the complainant's

testimony that appellant had previously penetrated her with his penis for the ostensible

purpose of "checking" her for sexual activity. If the jury believed this testimony and did

not believe the penile penetration was for a parental purpose, it was free to infer

appellant engaged in the other acts of penetration for the purpose of arousing or

gratifying his sexual desire. See, e.g., Abbott v. State, 196 S.W.3d 334, 341 (Tex.

App.—Waco 2006, pet. refd) (jury can infer intent to arouse or gratify sexual desire from

defendant's act of touching child's genitals and commission of same conduct on other

occasions is additional evidence of that intent).     The jury did not have to believe

appellant's parental purpose explanation and could have convicted appellant based on

the testimony of the complainant and other witnesses. Sharp, 707 S.W.2d at 614. The

evidence was sufficient to support appellant's conviction for indecency with a child and

we overrule appellant's fourth point of error.


Injury to a Child


        A person commits the offense of injury to a child if he, by act, intentionally,

knowingly, recklessly, or with criminal negligence causes bodily injury to a child under

the age of fourteen. Tex. Penal Code Ann. § 22.04(a)(3) (West 2013). "Bodily injury"

means physical pain, illness, or any impairment of physical condition. Tex. Penal Code

Ann. § 1.07(8) (West 2013). Injury to a child is a result-oriented offense requiring a

mental state that relates not to the charged conduct but rather to the result of the

                                                 9
conduct. Baldwin v. State, 264 S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2008,

pet. refd).


          Count four of the indictment in this case alleged appellant committed the injury to

complainant intentionally or knowingly. Appellant challenges only the evidence

supporting his intent or knowledge of causing bodily injury.          He argues that "[i]n a

rational sense, the evidence at most demonstrated negligence or recklessness with

respect to the possibility of bodily injury," not intent or knowledge as to causing bodily

injury.     He asserts the evidence could not have shown he acted with intent or

knowledge because he was conducting this action with the parental purpose of

"checking" complainant for sexual activity with boys.


           Complainant testified at trial that appellant penetrated her "private part" with his

finger and that it hurt because of his "long nails" and that "his bone hurt." The sexual

assault nurse examiner testified that touching a young girl's hymen is painful for the girl.

Complainant testified appellant had previously used his penis to penetrate her and told

her that if it hurt, this meant she was sexually active. The forensic investigator testified

complainant made those same statements to her. Thus, if believed by the jury, the jury

heard from complainant that appellant at least knew penetration of the complainant's

female sexual organ by his penis caused injury to her. The jury heard testimony that

appellant made statements that he was "checking" the complainant and, ifthey believed

he penetrated her with his finger on any of those occasions, the jury could have inferred

he did so with the intent or knowledge that he would injure the complainant because he

knew penetration injured her.        The jury was free to infer from this testimony that



                                                10
appellant acted with more than recklessness or negligence when he penetrated

complainant's sexual organ with his finger. Sharp, 707 S.W.2d at 614.


       From this evidence, the jury could have reasonably concluded appellant

intentionally or knowingly inflicted bodily injury on the complainant.           We resolve

appellant's first point of error against him.


Ineffective Assistance of Counsel



       In appellant's remaining four points of error, he contends he received ineffective

assistance of counsel during the guilt-innocence phase of his trial and the trial court

erred in allowing his motion for new trial regarding his counsel's assistance to be

overruled by operation of law.


       We defer to the trial court's right to weigh the credibility of the testimony at the

hearing on the motion for new trial. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.

Crim. App. 2001). "Because the trial judge is the sole judge of the credibility of the

witnesses, a trial court does not abuse its discretion by denying a motion for new trial

based on conflicting evidence." Cueva v. State, 339 S.W.3d 839, 857 (Tex. App —

Corpus Christi 2011, pet. refd). In assessing the evidence presented at the new trial

hearing, the trial court, sitting as the trier of fact, may also consider the interest and bias

of any witness. Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.]

1988, pet. refd) (per curiam) (citing Costello v. State, 98 Tex. Crim. 406, 266 S.W. 158

(Tex. Crim. App. 1924)). Deference to the trial court is required even if we would weigh

the testimony differently than did the trial court. Salazar, 38 S.W.3d at 148. Thus, we

review the evidence in the light most favorable to the trial court's ruling and presume all

                                                11
reasonable findings that could have been made against the losing party were so made.

Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.—Houston [14th Dist.] 2009, pet.

refd); Acosta v. State, 160 S.W.3d 204, 210 (Tex. App.—Fort Worth 2005, no pet.).

Only when no reasonable view of the record could support the trial court's ruling do we

conclude the trial court abused its discretion by denying the motion for new trial. Holden

v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).


      The trial court's determination of a motion for new trial on the ground of

ineffective assistance of counsel is a matter entirely within the trial court's discretion.

Cueva, 339 S.W.3d at 856-57. Therefore, under the facts of this case, we will review the

prongs of Strickland v. Washington through this abuse of discretion standard of review,

reversing only if the trial court's decision was arbitrary or unreasonable. Id. at 857. To

establish ineffective assistance of counsel, appellant must show: (1) his attorney's

representation was deficient; and (2) there is a reasonable probability that, but for his

attorney's errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Salinas v.

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Cueva, 339 S.W.3d at 857. "An

appellant's failure to satisfy one prong of the Strickland test negates a court's need to

consider the other prong."    Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.

2009). Because Strickland's first prong is dispositive of this point, we will limit our

analysis to that prong. See Tex. R. App. P. 47.1.


       "Decisions rooted in strategy do not constitute deficient performance. Unless a

defendant can show in the record that counsel's conduct was not the product of a

strategic decision, a reviewing court should presume that trial counsel's performance

                                            12
was constitutionally adequate unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it." Cueva, 339 S.W.3d at 857-58 (citations

omitted). Appellant's trial counsel testified at the hearing on appellant's motion for new

trial. The court also admitted for consideration several documents, including a copy of

the motion for new trial; affidavits from appellant, appellant's girlfriend and appellant's

sister; a transcription of a recording of a conversation between the complainant and

appellant's sister; a transcription and DVD copy of the forensic interview of complainant;

a copy of an indictment and judgment against complainant's mother's former boyfriend,

and a transcription of appellant's girlfriend's grand jury testimony. The trial court took

the matter under advisement. Appellant's motion for new trial was later overruled by

operation of law.


       In his motion for new trial and on appeal, appellant contends his counsel was

ineffective in several ways: (1) trial counsel had trouble hearing the testimony during

trial; (2) he left at his office the only copy of a video where complainant recanted; and

(3) he failed to call a member of appellant's family who would have contradicted basic

elements of complainant's testimony. He further argued, "[i]n the alternative, [appellant]

would submit that trial counsel erred at sentencing by failing to present adequate

mitigation evidence and by failing to adequately dispute the sentencing allegations." On

appeal, appellant includes a number of additional complaints about his counsel.


       At the hearing, counsel was asked whether he has hearing problems and had

them during trial. He answered, "Probably so. I know I had to ask witnesses numerous

times to repeat what they were saying. And some of the times when they would repeat

it, I wasn't really sure that I knew exactly what they were saying. My cross-examination

                                            13
seemed to flow, and it appeared to me as I was asking the questions that I did

understand it, but I don't really know."    During cross-examination, counsel answered

affirmatively when asked if he was able to communicate with appellant, witnesses and

family members. On appeal, the State points out several instances during trial in which

counsel asked a witness to repeat an answer and incorporated the answer into his next

question, indicating he heard and understood the witness. We agree with the State's

assessment.



       We acknowledge appellant's argument on appeal his counsel was ineffective for

failing to request a continuance due to his hearing issues.         However, this was not

explored at the hearing on appellant's motion for new trial and the record is silent on this

point. We must assume counsel made a strategic decision not to ask for a continuance

due to his hearing issues. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)

(stating counsel should ordinarily be accorded opportunity to explain actions before

being condemned as unprofessional and incompetent).


       Appellant next complains of counsel's failure at trial to offer into evidence a

particular video. Counsel also testified he was aware prior to trial of the video appellant

claims he should have offered at trial.    He told the court, "I decided not to use it, and I

could see that it would go either way. On the one hand, the child is saying something

contrary to what she says in court. On the other hand, she's in a public place with

someone asking her kind of leading questions about things that she would not want to

admit around other people, I would imagine. And I felt like if we did that, it may be more

damaging than helpful. I tried to cover the situation through cross-examination." On

cross-examination at the hearing he agreed the decision was one of strategy. Counsel

                                              14
is not required to perform flawlessly, and ineffectiveness is not established solely by the

fact that a different trial strategy may have been pursued by another attorney in

hindsight. Muennink v. State, 933 S.W.2d 677, 680 (Tex. App.—San Antonio 1996, pet.

refd); see Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) ("The mere

fact that another attorney might have pursued a different tactic at trial does not suffice to

prove a claim of ineffective assistance of counsel," cert, denied, 133 S. Ct. 834 (2013)).

We cannot find counsel provided ineffective assistance on this point.


       Counsel also testified about his decision to refrain from calling appellant's sister

as a witness. He stated, "I had had a discussion with the Defendant and we decided

not to do that. It was a little bit of a value judgment, you might say, in how [appellant's

sister] might appear on the stand, if she were to become overly outgoing or not. And I

just decided that it would probably be better not to." He further testified, "I concluded

that she was - it was a little bit unpredictable as to what sort of emotional state she

would be in and how she would respond to direct and cross."            He also testified he

decided not to call appellant's girlfriend because he believed "at the time that it would be

counterproductive to do so." During cross-examination at the hearing, he told the court

he and appellant discussed it and "jointly decided not to" call the girlfriend, although he

could not recall the reasoning behind the decision. He did say he would "possibly" call

the girlfriend if he had the trial to do over again, given the possibility of her testimony

contradicting the complainant's version of events. We cannot say counsel's decisions

were not reasonable or that he was deficient for making those choices. See James v.

State, 997 S.W.2d 898, 902 (Tex. App.—Beaumont 1999, no pet.) (trial counsel's failure




                                              15
to call every witness requested by defendant is irrelevant absent evidence defendant

would have benefitted from testimony).


      Appellant complains of counsel's decisions regarding objections and introduction

of certain evidence. We agree with the State that to the degree appellant is arguing his

counsel should have objected to multiple outcry witnesses, such an objection would

have been improper. A teacher testified at trial to complainant's outcry of appellant's

penile penetration while an investigator testified to her outcry of appellant's digital

penetration. The outcry statute is event-specific, not person-specific, and there can be

multiple outcry witnesses. Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana

2000, pet. refd). Because the teacher and the investigator described different events,

the testimony of both was admissible. The sexual assault nurse examiner testified to

statements made to her for purposes of medical diagnosis or treatment. See Tex. R.

Evid. 803(4). As to appellant's complaints that his counsel failed to utilize the forensic

interview and phone calls of complainant to a greater degree, counsel's testimony at the

hearing on the motion for new trial indicates his decision was again one of strategy.

Thus, appellant has not demonstrated that counsel performed "below an objective

standard of reasonableness" on this basis.



      We reach the same conclusion concerning counsel's decisions regarding the

punishment phase of appellant's trial. Counsel noted he thought about his approach to

punishment but did not believe "it would be particularly helpful" to call members of

appellant's family or other witnesses to testify during punishment or to present evidence

of appellant's potential mental illness. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.

App. 2010) (also noting failure to call witnesses at the guilt-innocence and punishment

                                             16
stages is irrelevant absent a showing that such witnesses were available and appellant

would benefit from their testimony).


       Appellant further contends his trial counsel was ineffective because he failed to

request a medical defense instruction to show his parental purpose in "checking"

complainant. The medical-care defense is one of confession and avoidance. Cornet,

359 S.W.3d at 224-25; Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013). A

defendant claiming entitlement to this defense must admit to each element of the

offense.Jncluding both the act and the requisite mental state. Villa, 417 S.W.3d at 462.

When the defensive evidence does no more than attempt to negate an element of the

offense, a defendant is not entitled to a defensive instruction on any defense subject to

the confession-and-avoidance doctrine. Id. (citing Shaw v. State, 243 S.W.3d 647, 659

(Tex. Crim. App. 2007)). An instruction on a confession-and-avoidance defense is

appropriate only when "the defendant's defensive evidence essentially admits to every

element of the offense, including the culpable mental state, but interposes the

justification to excuse the otherwise criminal conduct." Id. Given the state of the law

and appellant's denial that he touched complainant9 while "checking" her, the defense
was inapplicable here and counsel was not ineffective for failing to request it.

       Appellant also complains that his counsel elicited testimony regarding appellant's

presence at complainant's school just before trial. At the hearing, counsel testified he

chose to elicit this testimony because he believed the State would introduce it as

evidence that appellant was attempting to intimidate complainant. His strategy was to


       9 As noted, an investigator testified appellant admitted he penetrated complainant on one
occasion. But, evidence showed, appellant on another occasion denied he made this statement.

                                                 17
introduce it first. Again, appellant has not demonstrated that counsel performed "below

an objective standard of reasonableness" on this basis.


       We conclude appellant has failed to show any of the complained-of acts and

omissions by his counsel fell below an objective standard of reasonableness.

Accordingly, the trial court did not abuse its discretion in allowing appellant's motion for

new trial to be overruled by operation of law. We overrule appellant's sixth, seventh,

eighth and ninth points of error.


                                           Conclusion



        Having overruled each of appellant's nine points of error, we affirm the judgment

of the trial court.




                                          James T. Campbell
                                                  Justice




Do not publish.




                                             18
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