                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS
 ARIEL MARTINEZ,                                §
                                                                No. 08-12-00191-CR
                               Appellant,       §
                                                                  Appeal from the
 v.                                             §
                                                                120th District Court
 THE STATE OF TEXAS,                            §
                                                              of El Paso County, Texas
                               Appellee.        §
                                                                (TC#20110D00036)
                                                §

                                            OPINION

        Appellant, Ariel Martinez, appeals his convictions for one count of aggravated sexual

assault of a child and two counts of indecency with a child. We affirm.

                                           BACKGROUND

        Because Appellant does not challenge the sufficiency of the evidence, we restrict our

discussion of the testimony and evidence presented at trial. Emilia Solis was a special education

teacher at Anthony Elementary School in Anthony, New Mexico. IL was a student in Solis’s

classroom. IL informed Solis that he needed to discuss a matter with her, and proceeded to make

an outcry regarding events that occurred when he went to the restroom at a Big 8 store in Anthony,

Texas. IL, who was ten years’ old at the time of the events, testified during trial regarding

Appellant’s acts upon him. IL was later interviewed by a forensic interviewer, Joe Zimmerly,

who also testified at trial.
       After the jury found Appellant guilty of all three counts, it assessed punishment at

ninety-nine years’ confinement for aggravated sexual assault of a child (Count I), twenty years’

confinement for indecency with a child (Count II), and ten years’ confinement for indecency with

a child (Count III).

                                          DISCUSSION

       In Issue One, Appellant complains the trial court erred when it overruled his relevancy

objection and permitted the State’s witness, Zimmerly, to testify that “the child [was] consistent

throughout his story.” Appellant argues that this testimony “was tantamount to allowing the

interviewer to give an opinion that the child was truthful[.]”

       We review a trial court’s evidentiary rulings under an abuse of discretion standard. Gallo

v. State, 239 S.W.3d 757, 765 (Tex.Crim.App. 2007)(expert testimony); Shuffield v. State, 189

S.W.3d 782, 793 (Tex.Crim.App. 2006)(evidence generally); Weatherred v. State, 15 S.W.3d 540,

542 (Tex.Crim.App. 2000)(expert testimony). A trial court abuses its discretion only when its

decision lies “outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204, 217

(Tex.Crim.App. 2007). When an evidentiary ruling admitting evidence is reasonably supported

by the record and is correct under any theory of law applicable to the case, it should be upheld.

See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008).

       To be admissible, expert testimony must “assist” the trier of fact but must not supplant the

jury’s decision. See TEX. R. EVID. 702; Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.

1997); Duckett v. State, 797 S.W.2d 906, 914 (Tex.Crim.App. 1990). An expert’s testimony

assists the fact finder when the jury is not qualified to “the best possible degree” to intelligently

determine the particular issue without the help thereof. Duckett, 797 S.W.2d at 914. Expert


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testimony that constitutes “a direct opinion on the truthfulness” of a child complainant’s

allegations does not assist the jury. Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App. 1993).

       The complained-of testimony arises from the State’s question to Zimmerly, “Was the child

consistent throughout his story?” Zimmerly answered, “Yes, ma’am.” Zimmerly did not offer

an opinion regarding or otherwise discuss the truthfulness of IL’s statements or testimony, the

truthfulness of IL’s allegations, or the characteristics of child victims as a class. We do not agree

with Appellant’s assertion that Zimmerly’s answer to the State’s question constituted a direct or

indirect comment on IL’s truthfulness or credibility. If we did arrive at that conclusion, however,

the error was harmless and did not have a substantial or injurious effect upon the jury’s verdict.

       In assessing the likelihood that the jury’s decision was improperly influenced, we consider

everything in the record, including any testimony or physical evidence admitted for the jury’s

consideration, the nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the case. Barshaw v.

State, 342 S.W.3d 91, 94 (Tex.Crim.App. 2011)(citations omitted).         We may also consider the

trial court’s jury instruction, the state’s theory, defensive theories, closing arguments, voir dire,

and whether the state emphasized the error. Id.

       We disregard non-constitutional error unless it affects the defendant’s substantial rights.

Id. at 93. In considering the potential to harm, we focus not on whether the outcome of the trial

was proper despite the error, but whether the error had a substantial or injurious effect or influence

on the jury’s verdict. Id. at 93-94. If, after examining the record as a whole, we have fair

assurance that the error did not influence the jury, or influenced the jury only slightly, we will not

overturn a conviction for non-constitutional error. Id. at 93. “A conviction must be reversed for


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non-constitutional error if the reviewing court has grave doubt that the result of the trial was free

from the substantial effect of the error.” Id. at 94.     If “in the judge’s mind, the matter is so

evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error,” grave

doubt exists. Id.

       Having reviewed the record as a whole, we conclude the admission of Zimmerly’s

testimony did not have a substantial or injurious effect or influence on the jury’s verdict or, at

most, had but only a slight influence on the jury. Id. at 93-94.    Among other evidence, the jury

heard testimony from IL, IL’s sexual-abuse nurse examiner, officer testimony regarding

Appellant’s own statements to police placing him at the scene, and considered the physical

evidence of injury to IL’s body and the timeframe for healing therefrom.                 Zimmerly’s

complained-of testimony was not reviewed, expanded upon, revisited, or even addressed by the

State during closing argument, and was but a small portion of the evidence before the jury. Issue

One is overruled.

       In Issues Two and Three, Appellant next raises allegations that his trial counsel rendered

ineffective assistance. We review ineffective assistance of counsel claims according to the

United States Supreme Court’s two-pronged Strickland test. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under the first prong, an appellant must

show that “counsel’s performance was deficient,” i.e., that his assistance “fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. Under the

second prong, an appellant must prove prejudice by showing “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694, 104 S.Ct. at 2068; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Johnson v.


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State, 234 S.W.3d 43, 56 (Tex. App. –El Paso 2007, no pet.). Prejudice is established by showing

a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Mallett v. State, 65

S.W.3d 59, 62–63 (Tex.Crim.App. 2001); Johnson, 234 S.W.3d at 56. A reasonable probability

is a probability sufficient to undermine confidence in the outcome. Mallett, 65 S.W.3d at 63;

Johnson, 234 S.W.3d at 56. Claims of ineffective assistance must be proven by a preponderance

of the evidence. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). A failure to make

either of the required showings of deficient performance and sufficient prejudice defeats an

appellant’s claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110

(Tex.Crim.App. 2003).      We look “to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9

S.W.3d 808, 813 (Tex.Crim.App. 1999). Further, “any judicial review must be highly deferential

to trial counsel and avoid the deleterious effects of hindsight.” Id.

                                             Analysis

       When analyzing an ineffective assistance of counsel claim, we “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the [appellant] must overcome the presumption that, under the circumstances,

the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689,

104 S.Ct. at 2065, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83

(1955). “To defeat the presumption of reasonable professional assistance, ‘any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.’” Thompson, 9 S.W.3d at 814, quoting McFarland v.


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State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Typically, however, “the undeveloped record

on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland.”

Thompson, 9 S.W.3d at 814 n.6. Without evidence in the record of the attorney’s reasons for his

conduct, the presumption that an attorney’s actions were sound trial strategy ordinarily cannot be

overcome. See Jackson, 877 S.W.2d at 771. Appellant “must prove, by a preponderance of the

evidence, that there is, in fact, no plausible professional reason for a specific act or omission” to

show ineffective assistance of counsel on direct appeal. Bone, 77 S.W.3d at 836.

       In Issue Two, Appellant complains that trial counsel failed to object to the hearsay

testimony of Officer Robert Sherrouse regarding IL’s description to him of the assailant and the

assailant’s genitals, genital area, and clothing. In Issue Three, Appellant asserts his trial counsel

erred in eliciting and failing to object to testimony regarding Appellant’s invocation of his right to

counsel after Appellant was asked to provide police with a written statement. Appellant’s

assertions are unsupported by any evidence in the record showing counsel’s reasons for his

conduct. Therefore, Appellant has not overcome the presumption that trial counsel’s actions

constituted sound trial strategy. See Jackson, 877 S.W.2d at 771. Because Appellant has failed

to satisfy the first Strickland prong, Issues Two and Three are overruled. Strickland, 466 U.S. at

687, 104 S.Ct. at 2064.

                                          CONCLUSION

       The trial court’s judgment is affirmed.


July 30, 2014                                  GUADALUPE RIVERA, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)

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