                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                               ________________________

                                    No. 07-12-00326-CR
                               ________________________

                           JOSEPH DALE MOSS, APPELLANT

                                                 V.

                           THE STATE OF TEXAS, APPELLEE



                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 21,941-C; Honorable Ana Estevez, Presiding


                                      August 15, 2013

                             MEMORANDUM OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Appellant, Joseph Dale Moss, was convicted by a jury of sexual assault, 1

enhanced, and sentenced to fifty years confinement. On appeal, Appellant contends (1)

he was denied his Sixth Amendment right to be confronted with the witnesses against

him when the trial court admitted a sexual assault nurse examiner report in the absence


1
See TEX. PENAL CODE ANN. § 22.011 (West 2011).
of the nurse who conducted the examination 2 and (2) his counsel was ineffective for

failing to request a mistrial after extraneous offense evidence was admitted without

objection. We affirm.


       Right to Confrontation


       Appellant contends that because he was not allowed to cross-examine the

Sexual Assault Nurse Examiner who prepared the report admitted into evidence, he

was denied his right to face-to-face confrontation and cross-examination as guaranteed

by the Sixth Amendment. See U.S. Const. Amend. VI; Crawford v. Washington, 541

U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).


       Assuming without deciding that the trial court committed error, a Sixth

Amendment Confrontation Clause violation is subject to harmless error analysis. Rubio

v. State, 241 S.W.3d 1, 3 (Tex.Crim.App. 2007). Before constitutional error can be held

harmless, the reviewing court must be able to determine beyond a reasonable doubt

that the error did not contribute to the appellant's conviction or punishment. TEX. R.

APP. P. 44.2(a); Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d

705 (1967); Langham v. State, 305 S.W.3d 568, 582 (Tex.Crim.App. 2010) (quoting

Scott v. State, 227 S.W.3d 670, 690-91 (Tex.Crim.App. 2007)). Therefore, if there is a

reasonable likelihood that the error materially affected the jury's deliberations, then the

error is not harmless beyond a reasonable doubt. Rubio, 241 S.W.3d at 3. Ultimately,

the question is whether the State has proven beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained. Id.


2
Because the examining nurse was out of state, her supervising nurse testified in her place.

                                                   2
        In determining whether the constitutional error may be declared harmless beyond

a reasonable doubt, the following factors are relevant: (1) how important the out-of-

court statement was to the State’s case; (2) whether the out-of-court statement was

cumulative of other evidence; (3) the presence or absence of evidence corroborating or

contradicting the out-of-court statement on material points; and (4) the overall strength

of the prosecution’s case. Langham, 305 S.W.3d at 582. The question is not whether

the verdict was supported by the evidence; the question is the likelihood that the

constitutional error was actually a contributing factor in the jury’s deliberations in arriving

at their decision, i.e., whether the error adversely affected the integrity of the process

leading to the decision. Id.


        Appellant contends he was harmed because he was prevented from questioning

the examining nurse regarding several aspects of her SANE report: the absence of

trauma to the complainant’s genitalia, her documentation of penetration, any sexual

activity by the complainant prior to the alleged incident, and a standard diagram of a

female figure depicting the complainant’s injuries by shading certain areas of the

diagram.


        We find nothing in the record that would suggest that “the integrity of the process

leading to conviction” was adversely affected. See Scott, 227 S.W.3d at 690. First, the

report indicated there was no indication of trauma and Appellant’s attorney cross-

examined the supervising nurse. 3 The report’s remaining evidence of penetration was

the complainant’s statements to the examining nurse. This evidence was cumulative of

3
 On cross-examination, Appellant’s attorney asked the supervising nurse “hypothetically can no trauma to
the female sex organ also be interpreted that no sexual contact occurred?” She answered, “I guess that it
could be.”

                                                   3
the complainant’s direct testimony at trial after which Appellant’s attorney conducted a

detailed cross-examination into events prior to the incident, the incident itself including

the sexual assault, and post-incident occurrences. The female diagram depicting the

complainant’s injuries was also cumulative of more explicit photographs of the same

injuries taken by police prior to the SANE examination and the complainant’s testimony

on direct/cross-examination. Furthermore, the complainant’s testimony, corroborated

by the police photographs and investigating officer’s testimony, did not contradict the

SANE report in any material way.


       Having evaluated the entire record, we cannot say there was any likelihood that

constitutional error was actually a contributing factor to the jury’s deliberations in arriving

at their decision given the overall strength of the State’s case and we believe the State

has proven beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained. Thus, assuming error, we conclude Appellant did not suffer harm.

Appellant’s first issue is overruled.


       Ineffective Assistance of Counsel


       Appellant asserts his counsel was ineffective for failing to request a mistrial after

the complainant testified during cross-examination that, in the early part of their

relationship, Appellant was in jail or on work release.         Although the complainant’s

testimony violated the trial court’s ruling on Appellant’s motion in limine regarding

extraneous offense evidence, Appellant’s attorney did not object, move to strike, or seek

an instruction to disregard the testimony.        The State counters that the record is

insufficient to conclude Appellant’s trial counsel was ineffective.


                                              4
       We examine ineffective assistance of counsel claims by the standard enunciated

in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant has

the burden to show by a preponderance of evidence (1) trial counsel’s performance was

deficient in that it fell below the prevailing professional norms, and (2) the deficiency

prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability

that the result of the proceeding would have been different. See Thompson v. State, 9

S.W.3d 808, 812 (Tex.Crim.App. 1999).            Counsel’s conduct is viewed with great

deference; Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005), and the

record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d

at 812.


       In the usual case in which an ineffective assistance claim is made, “the record on

direct appeal will not be sufficient to show that counsel’s representation was so deficient

and so lacking in tactical or strategic decision-making as to overcome the presumption

that counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d

828, 833 (Tex.Crim.App. 2002). This is generally the case because a silent record

provides no explanation for counsel’s actions and therefore will not overcome the strong

presumption of reasonable assistance.        Freeman v. State, 125 S.W.3d 505, 506

(Tex.Crim.App. 2003).     The appropriate procedure for raising a claim of ineffective

assistance is almost always a habeas corpus proceeding. Aldrich v. State, 104 S.W.3d

890, 896 (Tex.Crim.App. 2003).


       This case demonstrates the inadequacies inherent in evaluating claims on direct

appeal. See Patterson v. State, 46 S.W.3d 294, 306 (Tex.App.—Fort Worth 2001, pet.

                                             5
ref’d). Here, no motion for a new trial claiming ineffective assistance of counsel was

filed and no hearing was held to determine whether Appellant’s complaint involved

actions that may or may not have been grounded on sound trial strategy.               Courts

“commonly assume a strategic motive if any can be imagined and find counsel’s

performance deficient only if the conduct was so outrageous that no competent attorney

would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.

2005). Here, trial counsel may have made a strategic decision not to object or request

an instruction to disregard complainant’s cross-examination testimony in order to avoid

drawing attention to the testimony or appearing disagreeable with the complainant in

front of the jury.


       To find Appellant’s counsel ineffective on this record, we would have to engage

in prohibited speculation. See Stafford v. State, 101 S.W.3d 611, 613-14 (Tex.App.—

Houston [1st Dist.] 2003, pet. ref’d). Absent evidence of counsel’s strategy, we cannot

denounce his actions as ineffective nor can we determine there is a reasonable

probability that the outcome would have been different. For this reason, Appellant has

not met either prong of the Strickland test. Appellant’s second issue is overruled.


                                       Conclusion


       The judgment of the trial court is affirmed.



                                                 Patrick A. Pirtle
                                                     Justice



Do not publish.

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