Affirmed and Memorandum Opinion filed December 3, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00300-CR

                ARTHUR CLARENCE JOHNSON, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1515576

                          MEMORANDUM OPINION

      Appellant Arthur Clarence Johnson challenges his conviction for continuous
sexual abuse of a child contending (1) he was denied effective assistance of counsel
“when his attorney came to trial without his hearing aids, could not hear the
testimony, and failed to object to damaging hearsay testimony” and (2) the trial court
erroneously admitted the testimony of a psychologist “who had not examined the
complaining witness and who gave irrelevant improper expert testimony by opining
that children can be sexually abused with other people in the same bed.” We affirm.
                                  BACKGROUND

      Appellant was indicted for continuous sexual abuse of a child in 2016 and a
jury trial was held in April 2018. The evidence at trial showed as follows.

      Appellant lived with two of the mothers of his children and five to seven of
the mothers’ children in a warehouse for several months. One mother was his ex-
girlfriend, M.S.; she also had four more daughters (including Complainant) from
other relationships. Appellant and M.S. lived with Appellant’s then-girlfriend, H.K.,
with whom he had two children. M.S. and H.K. became friends; the ex-girlfriend’s
daughters developed a strong maternal relationship with H.K., and they considered
her to be their second mother.

      The warehouse unit in which these eight to ten people lived had room for a
king-size and a queen-size bed, couches, a refrigerator, a washer and dryer, and a
bathroom. Appellant and H.K. slept in one bed with two of M.S.’s five daughters
(including Complainant) while M.S. slept in the other bed close by with three of her
daughters. The daughters, including Complainant, rotated sleeping arrangements
between the two beds and the three adults. H.K. then became pregnant with
Appellant’s child.

      In October 2015, Complainant made her initial outcry to her mom and
Appellant’s girlfriend.    H.K. called the police and reported Complainant’s
allegations of assault. About three weeks later, Complainant was interviewed by a
forensic interviewer at the Children’s Assessment Center and underwent a medical
assessment by a child abuse pediatrician in November 2015.

      The forensic interviewer, Diop, testified at trial that Complainant disclosed
multiple instances of sexual abuse during her interview. Additionally, the child
abuse pediatrician Dr. Donaruma testified Complainant told her about numerous


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specific instances of sexual abuse she endured at the hands of Appellant and that he
showed her pornography. Complainant testified she told the doctor details of her
abuse using specific words, such as “tee-tee” and “pee-pee” or “pee part”;
Complainant also testified Appellant abused her on more than two occasions,
showed her “nasty videos” of “[g]irls and boys doing stuff”, and digitally penetrated
her after ripping her underwear. Complainant was ten years old at the time of trial
and between seven and eight years old when the sexual abuse occurred.

         Complainant further testified Appellant touched her mouth with his private
part while they were living in the warehouse. This happened while Complainant
was in the same bed as H.K. and H.K.’s baby. H.K. did not wake up because she is
a very hard sleeper. H.K. agreed that she was a very hard sleeper. Complainant
decided to tell H.K. about Appellant’s abuse because she “wanted him out of [her]
life.”

         Dr. Thompson, a psychiatrist and the director of therapy and psychological
services at the Harris County Children’s Assessment Center, testified (over a specific
objection to relevance) regarding (1) his work with child sexual abuse survivors and
their families and (2) his clinical knowledge of characteristics exhibited by child
victims of sexual abuse. He testified many sexually abused children commonly
exhibited “[d]epression, anxiety, interpersonal difficulties and sexual acting out
behaviors.” Dr. Thompson also testified he never interviewed Complainant.

         Dr. Thompson testified that “it can be very uncomfortable for a child who has
been sexually assaulted to say anything about the assault to anybody,” so it is
common for child abuse victims to partially disclose various incidents of sexual
abuse to different people. He stated “we do commonly see kids abused with other
adults around” and although less common, he has seen in clinical practice that
children were sexually abused “even with adults in the same bed.”

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      After hearing the evidence, a jury convicted Appellant of continuous sexual
abuse of a child and the trial court assessed Appellant’s punishment at thirty years’
confinement. Appellant filed a timely appeal.

                                      ANALYSIS

I.    Ineffective Assistance of Counsel

      Appellant argues in his first issue he was denied effective assistance of
counsel “when his attorney came to trial without his hearing aids, could not hear the
testimony, and failed to object to damaging hearsay testimony.” Although this
allegation appears to facially invoke significant constitutional concerns, such
concerns appear to be unwarranted under these facts.

      A.     Standard of Review and Applicable Law

      To prevail on a claim of ineffective assistance of counsel, an appellant must
show that (1) trial counsel’s performance was deficient because it fell below an
objective standard of reasonableness; and (2) the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 689 (1984); Lopez v. State,
343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

      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. Lopez, 343 S.W.3d at 142.
A defendant must overcome a strong presumption that trial counsel’s actions fell
within the wide range of reasonable and professional assistance. See id.; Garza v.
State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). “Before granting relief on a
claim that defense counsel failed to do something, we ordinarily require that counsel
be afforded the opportunity to outline the reasons for the omission.” Roberts v. State,
220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007).

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      If counsel’s reasons for his conduct do not appear in the record and there is at
least the possibility that the conduct could have been grounded in legitimate trial
strategy, we will typically defer to counsel’s decisions and deny relief on an
ineffective assistance claim. Garza, 213 S.W.3d at 348. “‘It is not sufficient that
appellant show, with the benefit of hindsight, that his counsel’s actions or omissions
during trial were merely of questionable competence.’” Lopez, 343 S.W.3d at 142-
43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). To
warrant reversal when trial counsel has not been afforded an opportunity to explain
his reasons, the challenged conduct must be “‘so outrageous that no competent
attorney would have engaged in it.’” Roberts, 220 S.W.3d at 533-34 (quoting
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). 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 but for counsel’s alleged errors. See Lopez, 343 S.W.3d at 142.

      In determining whether counsel was ineffective, we consider the totality of
the circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in (and
demonstrated by) the record. Id.; see also Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005) (“Direct appeal is usually an inadequate vehicle for raising
[an ineffective assistance] claim because the record is generally undeveloped.”).
Failure to satisfy either prong of the Strickland test defeats an ineffective assistance
claim. Strickland, 466 U.S. at 697; Nichols v. State, 494 S.W.3d 854, 857 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d).

      B.     Hearing Impairment

      Appellant argues he was “functionally denied counsel at a critical stage of
trial” because his trial counsel came to trial without his hearing aids and “could not

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hear testimony in at least eight instances” during trial. Relying on United States
Supreme Court precedent, Appellant argues this operates as a denial of counsel at a
critical stage of trial and creates a presumption of prejudice (quoting United States
v. Cronic, 466 U.S. 648, 659 (1984) (criminal defendants’ Sixth Amendment rights
are violated “if the accused is denied counsel at a critical stage.”)). “[A] defendant
is denied counsel not only when his attorney is physically absent from the
proceeding, but when he is mentally absent as well, i.e., counsel is asleep,
unconscious, or otherwise actually non compos mentis.” Ex parte McFarland, 163
S.W.3d 743, 752 (Tex. Crim. App. 2005) (citing Cronic, 466 U.S. at 659). Appellant
also cites Burdine v. Johnson, 262 F.3d 336, 347 (5th Cir. 2001); he contends that a
“counsel who cannot hear equates to no counsel at all”, and avers his trial counsel’s
inability to hear testimony rendered him constructively absent during trial (thereby
violating his Sixth Amendment right to counsel).

      Appellant cites the following exchange in the record:

      [THE STATE:] Okay. I just want to ask you a few more questions, Ms.
      Diop. We’ve looked at some of the photos of the forensic interview
      room. When you were interviewing [Complainant], do you recall what
      her demeanor was like?
      [FORENSIC INTERVIEWER:] Hmm, I do.
      [THE STATE:] What was it like?
      [FORENSIC INTERVIEWER:] It was — a matter of fact.
      [TRIAL COUNSEL]: I’m sorry, your Honor, I have a question. Could
      she repeat her question. I couldn’t hear her.
      THE COURT: She’s very soft-spoken.
      [TRIAL COUNSEL]: I’m sorry. I don’t have my hearing aids.
      [THE STATE]: I’m sorry, Mr. Fosher. I’ll speak up.
      THE COURT: The acoustics in here are not very good either so it’s
      hard to hear you.
      [THE STATE]: I think it will be better from here. I apologize.
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      This limited exchange reveals the person with the most intimate knowledge
and control over that particular courtroom personally believed (1) the acoustics
therein were “not very good”, (2) that it was “hard to hear” certain people therein,
and (3) counsel for the State was “very soft-spoken”; there were no objections to the
trial court’s express findings. It also reveals trial counsel attempted to compensate
for his hearing loss by seeking assistance from the trial court.     See Bermudez v.
State, 471 S.W.3d 572, 575 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (“[A]n
attorney with hearing loss is still capable of exercising judgment[,] [a]nd part of his
professional judgment is to discern the appropriate method, if any, to compensate
for his hearing loss,” including lip reading, seeking assistance from the trial court,
or using other compensation techniques.). In response, counsel for the State moved
to a different location in the courtroom and expressed her belief the new position
would accommodate trial counsel’s potential disability. Additionally, the record
establishes trial counsel (1) objected competently and on various grounds well over
fifty times throughout the trial, (2) stopped the testimony of witnesses or questioning
by the State several times, (3) asked witnesses to speak up and into the microphone
to make sure he heard everything that was said, (4) asked relevant and appropriate
follow-up questions on cross-examination and re-direct examination, and (5) made
an objection to nuanced bolstering during the State’s closing statement. Finally,
there is no independent evidence counsel (1) was not attempting to be humorous or
self-deprecatingly humble in front of the jury concerning an issue Appellant agrees
was of critical importance, (2) suffered from meaningful hearing loss, (3) even
possessed (much less required) hearing aids to perform as competent counsel, or (4)
actually failed to hear any given statement. Trial counsel’s actions at trial indicate
he heard the State’s questioning and statements as well as the witnesses’ testimony.

      Importantly, trial counsel was not the only person who had difficulties


                                          7
hearing. Numerous times throughout trial, the trial court, the State, and the court
reporter stated it was “hard to hear” in the courtroom and asked witnesses to speak
up, repeat their testimony, and speak into the microphone. Although these instances
have not been collected for us, we are aware of this occurring at least eighteen times
throughout the proceedings.

       Appellant’s reliance on Burdine is misplaced. In Burdine, the habeas corpus
proceedings established defense counsel was “repeatedly asleep, and hence
unconscious” during significant portions of trial. Burdine, 262 F.3d at 349. The
Fifth Circuit held that “[u]nconscious counsel equates to no counsel at all” and
“[u]nconscious counsel does not analyze, object, listen or in any way exercise
judgment on behalf of a client.”      Id.       The court stated “the attorney that is
unconscious during critical stages of a trial is simply not capable of exercising
judgment” and “is in fact no different from an attorney that is physically absent from
trial since both are equally unable to exercise judgment on behalf of their clients.”
Id. The court found “[s]uch absence of counsel at a critical stage of a proceeding
makes the adversary process unreliable, and thus a presumption of prejudice is
warranted pursuant to Cronic.” Id.

      Appellant’s trial counsel was neither asleep nor constructively absent.
Instead, he took necessary steps to ensure he heard (inter alia) both the State and
various witnesses at trial despite poor acoustics that cannot in any way be attributed
to him or his client. With the notable exception of hearsay, he timely and repeatedly
objected throughout trial and earnestly represented his client accused of continuous
sexual abuse of a child. No evidence supports Appellant’s argument that his trial
counsel “could not hear for most of the state’s case”.

      Under the circumstances of this case, we conclude Appellant failed to
demonstrate his trial counsel experienced difficulties hearing that rendered him

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constructively absent and warranted a presumption of prejudice under Cronic and
Burdine. See Cronic, 466 U.S. at 659; Burdine, 262 F.3d at 349. Instead, the record
before us reveals a single instance of expressed difficulty, an assurance that his
difficulties were in no way a fault of his own, and the rectification of said problem
by counsel for the State once it became known.

      B.     Hearsay Objection

      Appellant contends he was harmed by his trial counsel’s failure to object to a
portion of forensic interviewer Diop’s testimony because it was harmful hearsay.

      Diop testified Complainant disclosed during the interview that she had been
sexually abused multiple times by the same person.           Although Diop testified
Complainant was able to provide the timeframe when and the locations where the
sexual abuse occurred, she did not testify regarding (1) specifics disclosed to her or
(2) the identity of Complainant’s alleged abuser. Instead, the State showed Diop
photos that were taken during her interview and Diop testified they showed
Complainant demonstrating “the layout of the home of where the multiple incidents
occurred,” multiple specific acts, “her body position,” and the abuser’s body
position.

      Assuming arguendo both the non-verbal assertions in the photographs and
Diop’s testimony constitute hearsay without an exception, the record is silent as to
trial counsel’s motivation for not objecting thereto.        Appellant contends his
attorney’s possible disability in a difficult environment is the cause, but we find no
evidence in the record to support this contention; instead, we have already concluded
counsel could hear (as evidenced by his objections throughout most of the trial), that
his intermittent inability to hear was not his fault, and that he took reasonable steps
to accommodate any hearing difficulties he may have experienced. Further, trial
counsel has not been given an opportunity to explain why he did not object to the
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testimony Appellant now complains of on appeal.

      Child abuse pediatrician Dr. Donaruma was scheduled to testify concerning
the details of Appellant’s abuse (as disclosed to her during Complainant’s medical
assessment) and counsel presumably knew said testimony was admissible under
Texas Rule of Evidence 803(4). See also Castoreno v. State, 932 S.W.2d 597, 601-
02 (Tex. App.—San Antonio 1996, pet. ref’d). Under these circumstances, counsel
could have reasoned it would be best not to draw further attention to Diop’s
testimony regarding Complainant’s disclosure.       Appellant does not argue trial
counsel was ineffective by not objecting to Dr. Donaruma’s testimony and we will
defer to counsel’s decisions and deny relief on an ineffective assistance claim where
there is at least the possibility that the conduct could have been grounded in
legitimate trial strategy. Garza, 213 S.W.3d at 348. We do not find the challenged
conduct “‘so outrageous that no competent attorney would have engaged in it.’”
Roberts, 220 S.W.3d at 533-34 (quoting Goodspeed, 187 S.W.3d at 392).

      Further, we note that a sound trial strategy may be imperfectly executed and
that the right to effective assistance of counsel does not entitle a defendant to
errorless or perfect counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex.
Crim. App. 2006). “[I]solated instances in the record reflecting errors of omission
or commission do not render counsel’s performance ineffective, nor can ineffective
assistance of counsel be established by isolating one portion of trial counsel’s
performance for examination.” McFarland v. State, 845 S.W.2d 824, 843 (Tex.
Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9
(Tex. Crim. App. 1994). Here, we cannot conclude the record shows trial counsel
performed deficiently by failing to object to Diop’s testimony.

      Even if we concluded trial counsel acted unreasonably, Appellant cannot
demonstrate harm because there has been no showing that, but for counsel’s failure

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to object to some of Diop’s testimony, the outcome of the proceeding would have
been materially different. Specifically, Appellant has failed to show how Diop’s
non-specific testimony is harmful in light of specific testimony from Dr. Donaruma.
Compared to Dr. Donaruma’s specific and descriptive testimony of the abuses
Complainant said she endured, we cannot presume the general and more vague
testimony by Diop was harmful under the circumstances.

      Accordingly, we overrule Appellant’s first issue.

II.   Expert Testimony

      Appellant argues in his second issue that the trial court erroneously admitted
the testimony of Dr. Thompson (a psychologist), despite the fact that he “had not
examined [Complainant] and . . . gave irrelevant improper expert testimony by
opining that children can be sexually abused with other people in the same bed.”

      To preserve error for appellate review, a timely and specific objection is
required. Tex. R. App. P. 33.1(a)(1)(A). The objecting party must let the trial judge
know what he wants, why he thinks he is entitled to it, and do so clearly enough for
the judge to understand him at a time when the judge may do something about it.
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Additionally, a party
must object each time the inadmissible evidence is offered or obtain a running
objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Further, a
complaint on appeal must comport with the objection made at trial. See Clark, 365
S.W.3d at 339. Thus, an appellant fails to preserve error when the trial objection
does not comport with the issue raised on appeal. See Thomas v. State, 505 S.W.3d
916, 924 (Tex. Crim. App. 2016); Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim.
App. 2005).

      Here, the State called Dr. Thompson to testify. After he described his


                                         11
education, training, and experience (including almost 18 years working with child
abuse victims) the following exchange occurred:

      [THE STATE:] Okay. Now, as far as this particular case, have you
      had an opportunity to counsel or interview or meet the child in this
      case?
      [DR. THOMPSON:] No.
      [THE STATE:] Okay. So what would your opinions, in terms of any
      questions I ask you, what would you rely upon to render any type of
      opinions in this case?
      [DR. THOMPSON:] My clinical experience, literature on child sexual
      abuse, just sharing those things with this jury so that they can apply it
      to this case as they see fit.
      [TRIAL COUNSEL]: Your Honor, we object to his testimony as being
      irrelevant, since he did not examine the child.
      THE COURT: Overruled.
Trial counsel raised no complaint under Texas Rule of Evidence 403 that Dr.
Thompson’s testimony would be unduly prejudicial; he did not challenge Dr.
Thompson’s qualifications or the reliability of the science; he did not mention that
the expert opinion testimony was improper under Texas Rules of Evidence 702 and
703; he did not complain that Dr. Thompson improperly opined that children can be
sexually abused while other people are in the same bed; nor did he object to any of
the opinion testimony Dr. Thompson rendered during his testimony.

      Appellant complains for the first time on appeal that Dr. Thompson’s
testimony was improper because he opined “that children can be sexually abused
with other people in the same bed.” Appellant mentions Rule 403 for the first time
in his appellate brief. He also states for the first time that “[e]xpert testimony cannot
bolster other witness’s testimony as to the complaining witness’s credibility.”

      However, a careful review of the record establishes that Appellant failed to
preserve the complaints he now asserts on appeal; therefore, Appellant’s issue is

                                           12
waived, and we resolve it against him. See Tex. R. App. P. 33.1(a)(1)(A); Thomas,
505 S.W.3d at 924; Clark, 365 S.W.3d at 339; Swain, 181 S.W.3d at 367.
Accordingly, we overrule Appellant’s second issue.

                                  CONCLUSION

      We affirm the trial court’s judgment.




                                      /s/     Meagan Hassan
                                              Justice


Panel consists of Justices Wise, Jewell, and Hassan.
Do Not Publish — Tex. R. App. 47.2(b)




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