                            NUMBER 13-15-00080-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

GREGORY LEWIS, A/K/A
GREGORY ALLAN LEWIS,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 404th District Court
                        of Cameron County, Texas.


                       MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides

      By a single issue, appellant Gregory Lewis challenges his convictions for

continuous sexual assault of a child, two counts of aggravated sexual assault of a child

under 14 years of age, and indecency with a child, see TEX. PENAL CODE ANN. §§ 21.02(b),

22.021(a) (B), and 21.11(a) (West, Westlaw through 2015 R.S.). Appellant asserts that
he was denied effective assistance by his trial counsel.            We affirm.

                                    I.       BACKGROUND

        The State indicted Lewis who was the complaining witness’s, A.L.’s1 father for the

crimes listed above.      Lewis pleaded not guilty, and the case proceeded to a jury trial.

        The State called thirteen total witnesses at trial.        Among those testifying included:

the school counselor who heard the original outcry, two CPS caseworkers, the detective

assigned to the case, and the forensic interviewer who interviewed A.L. after her outcry.

The State also questioned various members of A.L.’s family.                A.L. was the State’s final

witness and testified to the various sexual acts she alleged Lewis forced her to engage

in.   Lewis chose not to testify.        However, Lewis’s wife, S.L., who is also A.L.’s mother,

testified.

        The jury found Lewis guilty of all four counts as alleged in the indictment.               Lewis

was sentenced to thirty years in the Texas Department of Criminal Justice—Institutional

Division on the continuous sexual abuse charge and aggravated sexual assault charges,

and twenty years for the indecency with a child charge.                 The trial court ordered the

sentences to run concurrently.

        Following Lewis’s conviction, he filed a motion for new trial2 alleging ineffective

assistance of counsel.       A hearing on the motion was held on February 2, 2015, where

Lewis’s trial attorney, Joseph Moreno, was questioned by Lewis’s appellate counsel and

the State. The trial court subsequently denied the motion for new trial, and this appeal



        1  Although the complaining witness’s identity was not concealed at trial, given the nature of the
case, on appeal, we will use only her initials.
         2 Unless mentioned specifically, no other issues were discussed during the motion for a new trial

hearing.

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followed.

                      II.   INEFFECTIVE ASSISTANCE OF COUNSEL

       By his sole issue, Lewis claims that he was denied effective assistance of counsel

during his trial.

A.     Standard of Review

       To prevail on a claim of ineffective assistance of counsel, the defendant must meet

the heavy burden of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,

the defendant must show by preponderance of the evidence that:                   (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that the result of the proceeding would have been different but for

the attorney’s deficient performance.     Hernandez v. State, 726 S.W.2d 53, 55 (Tex.

Crim. App. 1986) (en banc) (citing Strickland, 466 U.S. at 694); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet).                        Allegations of

ineffectiveness must be “firmly founded in the record.”      Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).      “A vague inarticulate sense that counsel could have

provided a better defense is not a legal basis for finding counsel constitutionally

incompetent.”       Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).             The

reasonableness of counsel’s performance is to be evaluated from counsel’s perspective

at the time of the alleged error and in light of all the circumstances.   Id.

       A “convicted defendant making a claim of ineffective assistance must identify the

acts or omissions of counsel that are alleged not to have been the result of reasonable

professional judgment.”     Strickland, 466 U.S. at 690.     We look to “the totality of the

representation and the particular circumstances of each case in evaluating the

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effectiveness of counsel.”     Thompson, 9 S.W.3d at 813.     If the appellant fails to prove

one prong of the test, we need not reach the other prong.      See Strickland, 466 U.S. at

697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

       Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim.      McFarland v. State, 928 S.W.2d 482, 500

(Tex. Crim. App. 1996).      Absent both showings, an appellate court cannot conclude the

conviction resulted from a breakdown in the adversarial process that renders the result

unreliable.    Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App.1993).

Appellant bears the burden of proving by a preponderance of the evidence that counsel

was ineffective.   Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App.1984).        When

handed the task of determining the validity of a defendant's claim of ineffective assistance

of counsel, any judicial review must be highly deferential to trial counsel and avoid the

deleterious effects of hindsight.    Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim.

App.1984).     Finally, there is a strong presumption that counsel's conduct fell within the

wide range of reasonable professional assistance.      Strickland, 466 U.S. 668, Thompson,

9 S.W.3d at 814.

B.     Discussion

       1.      Admission of Evidence

       Lewis first argues that his trial counsel failed to object to the introduction of

evidence of the magistrate’s finding of probable cause to arrest the defendant on hearsay

grounds.      As a general rule, hearsay evidence relating to probable cause is not

admissible when the issue of probable cause is not raised before the jury.         Smith v.

State, 574 S.W.2d 555, 557 (Tex. Crim. App. 1978).          In the present case, the State

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questioned Harlingen Police Investigator Ruben Salazar and asked him questions

regarding the arrest warrant issued for Lewis as well as what probable cause was needed,

but the issue of probable cause was not raised before the jury.     Lewis argues that the

issue of probable cause was not raised before the jury, and the evidence elicited from the

witness was therefore not admissible.        However, Lewis’s trial counsel objected on

relevance grounds regarding the issue of probable cause, and the trial court sustained

the objection.    On appeal, however, Lewis argues that his trial counsel did not object on

hearsay grounds.      While the complained-of evidence is inadmissible hearsay, Lewis

nevertheless fails to rebut the strong presumption that Lewis’s trial counsel’s conduct was

not unreasonable.      Regardless, even if he met his burden under the first prong of

Strickland, Lewis fails to show how this alleged failure would have resulted in a different

outcome but for the alleged deficiency.    See Hernandez, 726 S.W.2d at 55.

       Next, Lewis contends that the State elicited additional information on the issue of

probable cause from the Court Assigned Special Advocate (C.A.S.A.) volunteer Ricardo

Cavazos, who stated “there was enough there for an arrest.”        Applying the Strickland

standard, we presume that Lewis’s counsel’s failure to object to this testimony was

reasonable because Detective Salazar was on the State’s witness list and later testified

about Lewis’s arrest, therefore, not requiring any objection from Lewis’s counsel.    See

Strickland, 466 U.S. 668.      An analysis under the second prong of Strickland is not

necessary because Lewis fails to rebut the strong presumption that his trial counsel acted

reasonably. Id.

       By his second sub-issue, Lewis argues that his trial counsel’s failure to object to

hearsay testimony by Sexual Assault Nurse Examiner (S.A.N.E.), Goldie Strader,

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amounted to ineffective assistance.      At trial, Nurse Strader was asked to read the

complaining witness’s medical history from the report she created.        Initially, defense

counsel objected to bolstering, but the State responded that it was relevant and was also

an exception to the hearsay rule.

       Hearsay is an out of court statement that is being offered to prove the truth of the

matter asserted. TEX. R. EVID. 801(d).      Hearsay statements are inadmissible in court

because it presents the jury with information other than the witness’s sworn testimony.

However, as in the present case, statements referencing the “medical diagnosis or

treatment and describing medical history” are an exception to the hearsay rule and can

be admissible at trial.   TEX. R. EVID. 803(4). Lewis argues that the State did not elicit

evidence from the witness that would be considered part of a medical diagnosis.     Strader

recited A.L.’s medical history, which was taken in order to be able to establish her medical

diagnosis.   A.L.’s medical history was given to Nurse Strader for the purpose of

facilitating her medical diagnosis or treatment, making the history admissible under an

exception to the hearsay rule.    See Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App.

2008) (holding statements to a non-medical professional that will be relayed to a medical

professional about the declarant's diagnosis are admissible under the exception to the

hearsay rule for statements made for the purpose of medical diagnosis).       Because this

evidence was admissible pursuant to this hearsay exception, an objection to this evidence

would have been without merit.      Thus, Lewis failed to meet his burden under the first

prong of Strickland test to show that his trial counsel’s representation fell below an

objective standard of reasonableness.

       Lewis’s third sub-issue argues that his trial counsel was ineffective because he

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failed to object to Texas Department of Family and Protective Services (CPS) caseworker

Diana Molina’s testimony regarding an ultimate issue of material fact that should be

decided by a jury.    As explained by Molina, each child abuse case is classified by CPS

into three different findings:   reason to believe, unable to determine, and rule out. Molina

testified that A.L.’s case was classified as a “reason-to-believe” case, meaning that the

CPS had sufficient evidence to believe A.L’s complaint was credible.              A witness’s

testimony cannot rise to the level of “‘replacing’ the jury,” by making conclusions on issues

that are for the jury to decide.     See Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App.

1993). When this issue was raised at the motion for a new trial hearing, however, trial

counsel addressed this issue as well as his reasoning for not objecting to it:

       [Appellate Counsel]: Did you object to the—did you object, as the attorney,
                            to the reason to believe as being a conclusion on the
                            part of the witness?

       [Trial Counsel]           I did not object to that, because I knew that on cross-
                                 examination, I was going to be able to show that she
                                 didn't know what she was talking about because she
                                 didn't have -- she didn't know about the existing
                                 evidence that contradicted the statements that were
                                 made, so I knew that I would be able to -- to -- to get
                                 her to say she didn't know.

       In an ineffective assistance claim, appellant has to prove that counsel's actions

were not supported by a reasonable strategy.        Massaro v. United States, 538 U.S. 500,

504-05 (2003).     Lewis’s trial counsel explained that during his cross examination of

Molina, he attempted to show that jury that “[Molina] didn’t know what she was talking

about,” by discrediting her testimony by asking her specific questions about the case that

she was not able to answer.       Trial counsel’s competence is presumed and his failure to

object was part of sound strategy.      Here, Lewis’s trial counsel disclosed his strategy for

                                                7
not objecting and how he sought to discredit Molina during cross examination.

Therefore, Lewis’s argument does not meet his burden under Strickland.

       By his fourth and fifth sub-issues, Lewis argues that his trial counsel’s failure to

object to evidence of the various witnesses’ opinions regarding the truthfulness and

character of the complaining witness amounted to ineffective assistance. Generally, no

witness may ever give an opinion concerning the truth or falsity of another witness’s

testimony.    Joseph v. State, 367 S.W.3d 741 (Tex. App.—Houston [14th Dist.] 2012)

(citing Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962)); TEX. R. EVID. 701.

       Lewis first argues that the statements made by the school counselor Claudia

Penuelas commented on A.L.’s willingness to accept fault and her propensity to tell lies,

and that these comments should have been objected to, as the credibility of A.L. had not

yet been attacked.      TEX. R. EVID. 608. While it is conceivable that these statements

could have been objectionable, Lewis fails to establish how his trial counsel’s failure to

object fell outside the wide the range of reasonable professional assistance.     Thompson,

9 S.W.3d at 814, McFarland 228 2d at 500. Additionally, Lewis asserts that his trial

counsel should have objected to testimony from Marcela Fuentes, A.L.’s assistant

principal, as inadmissible character-for-truthfulness evidence.         The record reveals,

however, that Lewis’s trial counsel did object to this testimony, but the trial court overruled

this objection.   As a result, we conclude that Lewis again failed to meet his burden to

establish a claim for ineffective assistance of counsel on this ground.

       Lewis also argues that testimony from Molina and Cavazos was also wrongfully

admitted as character evidence, and his trial counsel was ineffective for failing to object

to its admissibility.   Lewis also points to testimony by S.L., A.L.’s mother, who testified

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about A.L.’s truthfulness, as well as similar testimony from A.L.’s grandmother and uncle

and testimony by Detective Salazar.         However, like many of Lewis’s arguments on

appeal, however, the record is silent as to why his trial counsel failed to object to this

purportedly inadmissible evidence.      As a result, Lewis fails to rebut the presumption that

his trial counsel’s decisions not to object was reasonable.      See Thompson, 9 S.W.3d at

814.

       Next, Lewis argues that Galvan-Castillo’s testimony about A.L.’s providing of

sensory details and Nurse Strader’s reading of the medical report also amounted to

inadmissible evidence regarding A.L.’s truthfulness; however evidence that is rationally-

based on a witness’s perception does not constitute improper evidence of character for

truthfulness. TEX. R. EVID. 701.       Therefore, Lewis failed to establish how his trial

counsel’s failure to object was unreasonable.

       Additionally, Lewis challenges several statements made by Casey Monroe, A.L.’s

therapist as impermissible credibility testimony.     The first statement related to Monroe’s

description of A.L.’s demeanor, while A.L. described the acts of abuse against her.

Another piece of testimony that Lewis complains about on appeal related to Monroe’s

apparent commentary on A.L.’s credibility.         Even if we assume without deciding that

these statements constitute inadmissible character evidence, we must be highly

deferential to Lewis’s trial counsel’s decision not to object.   See Thompson, 9 S.W.3d at

814.   Furthermore, Lewis also fails to prove beyond a preponderance of the evidence

that trial counsel was ineffective by failing to object.   See Thompson, 9 S.W.3d at 814.

       Lewis’s sixth sub-issue alleges that trial counsel was ineffective by failing to

request pre-trial notice and object at trial to the State’s attempts to introduce evidence in

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violation of Rule 404(b). TEX. R. EVID. 404(b)(2). Rule 404(b)(2) of the Texas Rules of

Evidence states:

        This evidence may be admissible for another purpose, such as proving
        motive, opportunity, intent, preparation, plan, knowledge, identity, absence
        of mistake, or lack of accident. On timely request by a defendant in a
        criminal case, the prosecutor must provide reasonable notice before trial
        that the prosecution intends to introduce such evidence--other than that
        arising in the same transaction--in its case-in-chief.

Id.   According to this rule, the State must provide notice to the defendant of any bad acts

they plan to introduce at trial if it is requested by the Defense.

        In the present case, trial counsel did not request notice of the bad acts; however,

even if he had, the State still would have been able to present the evidence of bad acts

at trial, which would have made an objection meritless.      For example, several pieces of

testimony that are referenced by Lewis refer to observations made of Lewis’s demeanor

during the pendency of the trial.    However, demeanor does not fall under the scope of

admissibility as defined above.     Because we must be highly deferential to Lewis’s trial

counsel’s decision, and because Lewis fails to prove through evidence firmly founded in

the record that would prove the trial counsel’s ineffectiveness by failing to object to this

testimony, we conclude that Lewis again fails to meet his burden under Strickland. See

Ingham, 679 S.W.2d at 509, Thompson, 9 S.W.3d at 813.

        Additionally, Lewis points to other unobjected to evidence that referenced S.L.’s

alleged marijuana use when A.L. was born, as well as testimony regarding Lewis’s failure

to comply with the CPS safety plan and his hostility toward CPS.      As stated previously,

Lewis bears the burden of proving beyond a preponderance of the evidence that his trial

counsel was ineffective by allowing this testimony into evidence.    Aside from mentioning


                                              10
this testimony, Lewis fails to explain how or why his trial counsel’s failure to object

amounted in ineffective assistance.

       Further, Lewis argues that the State improperly elicited evidence about how he

met his wife; however this evidence has no bearing on an ineffective assistance claim

because this testimony was objected to on relevance grounds, but nevertheless overruled

by the trial court.   Finally, Lewis argues that his trial counsel’s failure to object to the

State’s questioning of A.L.’s uncle, Roger Allen, about Lewis’s relationship with A.L. was

improper and should have been objected to.         According to the record, however, this line

of questioning solely dealt with the amount of time that Lewis spent with A.L.     Therefore,

even assuming without deciding that Lewis met his burden under the first prong of

Strickland, he fails to show how this alleged failure would have resulted in a different

outcome but for the alleged error.    See Hernandez, 726 S.W.2d at 55.

       2.     Jury Argument by the Prosecutor

       The seventh and final sub-issue raised is trial counsel’s alleged failure to object to

three instances during closing argument in which the State alluded to Lewis’s failure to

testify which purportedly violated his right to remain silent.   A prosecutor's comment can

amount to an impermissible comment on a defendant's failure to testify only if, when

viewed from the jury's standpoint, the comment is manifestly intended to be, or is of such

character that a typical jury would naturally and necessarily take it to be, a comment on

the defendant's failure to testify.   Crocker v. State, 248 S.W.3d 299, 304 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d.) (citing Bustamante v. State, 48 S.W.3d 761, 765

(Tex. Crim. App. 2001)).



                                              11
       Lewis first complains of the following argument by the State’s prosecutor:

       Of course there was not another witness. It was her and him in that room,
       and he’s denying it. She is the one that came in here and told you that [sic]
       the details of what he would do to her.

Nothing in the record shows why Lewis’s trial counsel failed to object to this argument,

and Lewis fails to point to any evidence firmly founded in the record that failing to object

to this comment fell below the objective standard of reasonableness.         Therefore, we

must be highly deferential to the trial counsel’s judgment in not objecting to this comment

and it is presumed that this alleged error fell within the wide range of reasonable

professional assistance.   Strickland, 466 U.S. 668, Thompson, 9 S.W.3d at 814.

       The second and third comments made by the State that Lewis challenge are the

following:

       [T]hey tried to offer services to the Defendant, and at first, he showed up to
       that first meeting, and after that, he didn’t want anything to do with it.

       ....

       [Y]ou should care enough for your child to partake of it, …‘I would have
       done whatever was needed to clear my name and protect my family and get
       them back.’ That’s not what he did. Instead, what does he do? He cussed
       her out, didn’t have anything to do with it.

       Aside from referencing these comments, Lewis again fails to rebut the strong

presumption afforded his trial counsel that his failure to object was a reasonable decision.

See Strickland, 466 U.S. 668, Thompson, 9 S.W.3d at 814.

       3.     Summary

       In summary, we conclude that Lewis did not meet his burden on any grounds

alleged under Strickland to establish that his trial counsel provided ineffective assistance.

See 466 U.S. 668. Therefore, for the foregoing reasons, we overrule Lewis’s sole issue

                                             12
on appeal.

                                III.   CONCLUSION

       We affirm the trial court’s judgment.



                                                    GINA M. BENAVIDES,
                                                    Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
14th day of July, 2016.




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