                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00161-CR

CLIFFORD WAYNE GREEN,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1908-C1


                           MEMORANDUM OPINION


       Clifford Wayne Green was indicted on two counts of aggravated sexual assault of

a child. The jury returned a verdict of not guilty as to Count 1 and a verdict of guilty as

to Count 2. The jury assessed punishment at 35 years confinement and a $10,000 fine.

We reverse and remand.

                                    Background Facts

       M.J. testified that she lived with her mother and Appellant, her mother’s

boyfriend. In February 2000 when M.J. was in the seventh grade, they moved to Lorena,
Texas. M.J. testified that when she was in eighth grade she failed a test at school, and she

asked Appellant to sign the test for her because she did not want to get in trouble with

her mother. Appellant told her he would sign the test, but she had to do “exercises” for

him. M.J. testified that Appellant laid down on his back and told her to pull down her

underwear. Appellant then told M.J. to sit on his face, and he touched her private parts

with his tongue. M.J. said that she felt pain and that she thought Appellant used his

penis, but she could not say for certain that he used his penis.

         M.J. testified that Appellant told her not to tell anyone or he would hurt her mother

and blame her uncle who was recently released from prison. M.J. stated that Appellant

told her he was on parole for murder. Appellant moved out of the house several weeks

later.

         In 2012, when M.J. was a senior in college, she told her pastor what happened with

Appellant, and the pastor encouraged M.J. to tell her mother. M.J. told her mother a few

weeks later, and they later reported the incident to the sheriff’s department.

                                    Ineffective Assistance

         In the second issue, Appellant argues that he “received ineffective assistance of

counsel because he was denied conflict-free representation because Appellant’s

consulting expert testified as a witness for the State to Appellant’s detriment.” Although

Appellant did not raise this issue in the proceedings concerning his request for a new

trial, he may raise this point for the first time on appeal. See Robinson v. State, 16 S.W.3d

808, 809-11 (Tex. Crim. App. 2000) (stating that a defendant does not waive an ineffective

assistance claim by failing to raise it first at trial or in a motion for new trial).
Green v. State                                                                          Page 2
        To prevail on a claim of ineffective assistance of counsel, appellant must satisfy

the two-prong test by a preponderance of the evidence showing that: (1) his attorney's

performance was deficient; and (2) his attorney's deficient performance deprived him of

a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Unless appellant can prove both prongs, an appellate court must not find

counsel's representation to be ineffective. Id. at 687, 104 S.Ct. 2052. In order to satisfy the

first prong, appellant must prove, by a preponderance of the evidence, that trial counsel's

performance fell below an objective standard of reasonableness under the prevailing

professional norms. To prove prejudice, appellant must show that there is a reasonable

probability, or a probability sufficient to undermine confidence in the outcome, that the

result of the proceeding would have been different. Id.

        The State called Dr. William Lee Carter to testify at trial. The State noted that Dr.

Carter had not counseled M.J. in this case, but the State had asked Dr. Carter to look at

their case and help figure out the issues where the jury would need assistance. The State

asked Dr. Carter if he had evaluated Appellant, and Dr. Carter responded that he had

not. Dr. Carter testified about the relationship between the accuser and the person being

accused. Dr. Carter explained how the relationship between the accuser and the person

accused may cause the child not to tell anyone about the abuse.

        The State questioned Dr. Carter about Appellant’s relationship with M.J. and how

the relationship might have affected M.J.’s decision not to disclose the offense. Dr. Carter

testified that 50 to 70 percent of child victims do not report sexual abuse and “carry their

secret well on into adulthood.” The State asked Dr. Carter if he would be surprised that
Green v. State                                                                           Page 3
a member of the jury panel indicated she had been a victim of sexual abuse and had never

reported it, and Dr. Carter responded that he would not be surprised by that.

        The State further questioned Dr. Carter:

                 Now in your opinion then, what kind of implication could it have
        on a child - - to believe that their offender is a murderer, that he’s murdered
        multiple people, that he’s on parole, you know, has seen him argue with
        her mother, and there is no consequences to that? How can we expect that
        to - - play on her willingness to disclose the abuse?

Dr. Carter responded that he has evaluated and counseled hundreds of child abuse

victims and fear is the underlying reason why children do not disclose the abuse. If a

child has reason to believe the person could follow through on a threat, that would give

reason to the child to believe her fears are real and she could be hurt or someone she cares

about could be hurt if she makes a disclosure.

        After Dr. Carter had testified for approximately 30 minutes, the Appellant’s trial

counsel objected to Dr. Carter’s testimony. There was a discussion out of the presence of

the jury, and Appellant’s trial counsel revealed for the first time that Dr. Carter had

evaluated Appellant as a consulting defense expert. The State informed the trial court

that it had given Appellant’s trial counsel notice of its intention to call Dr. Carter at trial.

Appellant’s trial counsel responded that he assumed Dr. Carter would inform the State

Appellant had retained him in this case. The trial court noted that Dr. Carter had spent

30 minutes testifying for the State “when all this time you knew that he had examined

your client, and I certainly didn’t know it. The State didn’t know it, so … I’m really on

the horns of a dilemma here.” Appellant’s trial counsel stated that he did not say


Green v. State                                                                            Page 4
anything when the State called Dr. Carter because he was not sure for what purpose they

were calling him.

          Dr. Carter stated outside the presence of the jury that he had forgotten that he did

an evaluation of Appellant and that he is not relying on that evaluation in his testimony.

The trial court asked Dr. Carter whether he recalled anything about the evaluation that

would affect his testimony. Dr. Carter responded that he did not.

          The trial court stated:

          Here’s what we’re going to do. Since the proverbial cat is already out of the
          bag, I’m not going to try and put it back in. I’m going to let Dr. Carter go
          ahead and testify as he would in any of the many cases he’s testified to in
          this courtroom and in this courthouse. Dr. Carter if there’s any question
          you’re asked by the State or, I guess, by anybody that triggers something in
          your mind that you’ve got an ethical conflict or that you’re violating any
          privileged information between you and the Defense, you say “I think I
          need to talk to you Judge, outside the presence of the jury.’

                                                …

          Well, this is a fine mess. All right. We’re going to continue as though
          nothing had happened. I wouldn’t know how to - - any problem we’ve got,
          I wouldn’t know how to cure it now, anyway. Anybody have any other
          suggestions? All right. Hearing none, we’re going to take a break. I’ve got
          a headache.

Appellant’s trial counsel requested a mistrial. The trial court denied the mistrial and

stated:

          Had you made the Court aware of any possible conflict at the - - when Dr.
          Carter came in and testified, I might have to consider that a little more
          strongly, but at this point, as I said, I don’t know how to put the cat back in
          the bag except to instruct everybody, and I - - as I think I already have, that
          if Dr. Carter feels like he’s been asked a question that - - that in any way
          triggers his memory of anything the Defendant told him that he’ll call that
          to the attention of the Court, and we’ll get outside the presence of the jury

Green v. State                                                                              Page 5
        and discuss it. I don’t think I can penalize the State for anything because
        they - - they had no idea about the situation any more than I did.

        Dr. Carter continued his testimony. He testified about other reasons a child victim

might not report abuse. Dr. Carter testified why a child might tell a peer about the abuse

first, as M.J. did in this case and also about the significance of telling a pastor as M.J. did

in this case. Dr. Carter agreed with the State that in telling her pastor, M.J. did not seem

to have an agenda or a motive. The State also questioned Dr. Carter on the reliability of

M.J.’s statement.

        Dr. Carter discussed the characteristics of sex offenders and things he notices in

evaluating sex offenders. The State questioned Dr. Carter about what he observed when

watching the videotaped interview Appellant gave at the sheriff’s department and asked

Dr. Carter to evaluate Appellant’s statements and criminal history. Dr. Carter further

testified about the percentage of false allegations of sexual abuse and that M.J. had no

motive or agenda to make a false allegation. Dr. Carter agreed with the State that this

case falls into the percentage of cases that are unlikely to be false allegations.

        In his issue on appeal, Appellant states that he received ineffective assistance of

counsel. He points out that he was denied conflict-free representation. Appellant does

not complain that his attorney-client privilege was violated by Dr. Carter’s testimony at

trial, but rather that his right to conflict-free representation must necessarily extend to

trial counsel experts such as Dr. Carter. Appellant’s argument focuses primarily on his

right to conflict-free representation as set out in Cuyler v. Sullivan, 446 U.S. 335 (1980) and




Green v. State                                                                           Page 6
that the right to conflict-free representation must include all of an accused’s defense team,

including a consulting expert.

        The Texas Rules of Appellate Procedure provide that the statement of an issue or

point will be treated as covering every subsidiary question that is fairly included. TEX. R.

APP. P. 38.1 (f). Appellant’s issue specifically states that he received ineffective assistance

of counsel.     His argument notes that the Sixth Amendment of the United States

Constitution guarantees his right to reasonably effective assistance of counsel. He further

argues in his brief that his trial counsel failed to object to Dr. Carter’s testimony until Dr.

Carter had testified for 30 minutes. Appellant’s issue and argument necessarily include

consideration of trial counsel’s performance in allowing a retained defense expert to

testify on behalf of the State. We will, therefore, consider appellant’s argument on appeal

that he received ineffective assistance of counsel1.

        In Andrews v. State, the Court of Criminal Appeals stated:

                We have said that we 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. The policy behind this course is that ‘[i]ntensive scrutiny of
        counsel and rigid requirements for acceptable assistance could dampen the
        ardor and impair the independence of defense counsel, discourage the
        acceptance of assigned cases, and undermine the trust between attorney
        and client.’ This standard balances the protection of these important policy
        interests with the protection of each defendant's fundamental Sixth
        Amendment rights.
                As a result, we have said that the record on direct appeal is in almost
        all cases inadequate to show that counsel's conduct fell below an objectively
        reasonable standard of performance and that the better course is to pursue
        the claim in habeas proceedings. But, when no reasonable trial strategy

1We need not reach the broader issue argued by counsel that experts are necessarily included to the same
extent as attorneys in having conflict-free counsel under the Sixth Amendment.
Green v. State                                                                                    Page 7
        could justify the trial counsel's conduct, counsel's performance falls below
        an objective standard of reasonableness as a matter of law, regardless of
        whether the record adequately reflects the trial counsel's subjective reasons
        for acting as she did.

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

        Trial counsel retained Dr. Carter as a consulting expert for Appellant and paid Dr.

Carter $850 for his services. Trial counsel received notice that the State intended to call

Dr. Carter as a witness. Trial counsel did not bring the conflict to the attention of the

State or the trial court prior to Dr. Carter’s testimony.         Dr. Carter testified for

approximately 30 minutes on behalf of the State before trial counsel objected to his

testimony. Because the credibility of M.J. was an issue in the case and the delayed outcry

was an issue, Dr. Carter’s testimony was detrimental to Appellant.

        Under the extremely unusual circumstances of this case, the record contains all the

information we need to make a decision. Andrews v. State, 159 S.W.3d at 103. We find

that no reasonable trial strategy could justify counsel’s conduct in allowing the retained

defense expert to testify favorably for the State.        We further find that counsel’s

performance falls below an objective standard of reasonableness.

        Having determined that counsel's performance at trial was deficient, we consider

whether there is a reasonable probability that the result of the proceeding would have

been different. See Strickland, 466 U.S. at 687, 694; Andrews v. State, 159 S.W.3d at 101. To

satisfy the second prong of the Strickland test, we do not require that the appellant show

that there would have been a different result if counsel's performance had not been

deficient. Andrews v. State, 159 S.W.3d at 102. The appellant must show only that "there

Green v. State                                                                          Page 8
is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. Id. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id.

        M.J. did not report the sexual abuse for approximately eleven years. The delayed

outcry was an issue at trial. Dr. Carter’s testimony helped aid the jury in explaining why

M.J. may have delayed making an outcry. The State emphasized the reasons for delayed

outcry during final arguments and noted that three members of the panel had been the

victims of sexual abuse and one of those had not reported the abuse. Dr. Carter’s

testimony also helped bolster M.J’s credibility and aided the State in proving its case. The

State emphasized M.J.’s credibility and the fact that she had no reason to make a false

allegation. The main issues at trial were M.J.’s credibility and the delayed outcry. Dr.

Carter’s testimony aided the State and was detrimental to Appellant concerning those

issues. We find that Appellant was prejudiced by the deficiency in trial counsel’s

performance. We sustain Appellant’s second issue on appeal. Because of our disposition

of the second issue, we need not address the first issue. TEX.R.APP.P. 47.1.

                                       Conclusion

        We reverse the judgment of the trial court and remand to the trial court for

proceedings consistent with this opinion.




                                          AL SCOGGINS
                                          Justice

Green v. State                                                                        Page 9
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reverse and Remand
Opinion delivered and filed December 23, 2015
Do not publish
[CR PM]




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