Opinion issued December 22, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00824-CR
                           ———————————
                          KEVIN WIMES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1431168


                          MEMORANDUM OPINION

      Appellant Kevin Wimes was convicted of aggravated sexual assault of a

child younger than fourteen years of age, and he was sentenced to 40 years’

confinement. In three points of error, he complains that his trial counsel provided

ineffective assistance. We affirm.
                                 BACKGROUND

      The allegations against appellant in this case are that he sexually assaulted

his daughter, Jane.1

A.    State’s case

      Jane’s mother, Lacrisa, testified that she is the mother of five children, three

boys and two girls, and that she has lived in Florida since 1997. She is now

married and a stay-at-home mom.

      Lacrisa met appellant in 1997, and they dated for three years. They had two

daughters during their relationship, Jane and her younger sister, Ann. Lacrisa and

appellant broke off their relationship when Jane was three and Ann was two. After

their break-up, appellant moved to Texas. He did not financial support the girls,

and he only saw them once or twice over a period of years.

      In September 2008—when Jane was starting the fourth grade and Ann was

starting the third grade— appellant came back into their life. Lacrisa testified that

it was at a very hard financial time in her life; their car was being repossessed, they

were being evicted, and she could not pay their utility bills. Appellant explained to

her that he had gotten his life together in Texas, had a stable place to stay, and a

“young lady that is helping him out.” They agreed that appellant could take the

girls back to Texas for a while to live with him until Lacrisa got financially


1
      We use pseudenyms for minors in this opinion. See Tex. R. App. P. 9.10(a)(3).
                                          2
situated. While the girls were in Texas, Lacrisa lived in a hotel room with one

pull-out bed with her husband and other three kids for the first one and one-half

years, and then they got an apartment. She testified that it was a difficult choice

letting the girls move to Texas with their father, but she believed they would have

stability and resources that she lacked at home.

      While the two girls were with appellant in Texas, Lacrisa and the girls spoke

on the phone regularly. Appellant also sent Lacrisa pictures of the girls a couple of

times. Lacrisa thought the girls appeared happy. She never got a sense from the

girls during her conversations that there was anything wrong, and she never heard

any allegations of abuse.

      At one point, Jane called Lacrisa and said that she was ready to come home.

Lacrisa and her husband were already settled into their apartment and more

financially stable, so they welcomed the opportunity for the girls to move back. In

July 2010, Lacrisa and her husband drove the thirteen hours to Baytown, Texas,

where appellant and the girls were living, and checked into a hotel to rest because

they were tired from the drive. Appellant then started calling Lacrisa, saying:

“Bitch, come get these kids.”       She and her husband immediately went to

appellant’s house.

      When they arrived at appellant’s house, he was “intoxicated, in the street,

yelling bitches and whores, and acting like he wanted to fight.”         Several of


                                          3
appellant’s friends were also out in the street, as well and Jane and Ann. Lacrisa

got her girls into the car, they stayed the night at a hotel, and then returned to

Florida. When they got home, Lacrisa asked the girls if “anyone had touched them

inappropriately, and they stated no.” That question was prompted by the fact that

when she arrived at appellant’s house to pick the girls up, there were “just several

guys hanging outside . . . drinking; and something just didn’t look right.” She felt

there were too many men and that her daughters were dressed in inappropriate tight

shorts that she would never have dressed them in.

      The girls settled back into school in Florida, and their relationship with their

mother was alright, although Ann was somewhat withdrawn. Lacrisa testified that

she believed it was caused by the transition from Texas to Florida. After the girls

moved back to Florida, they talked to appellant on the phone a couple of times.

      Something came to her attention on January 7, 2011 that caused Lacrisa to

ask Jane if she had been sexually abused. Jane responded yes, and Lacrisa called

911. She was told that if the abuse took place in Texas, she would have to call a

Child Abuse line, which she did.       The next morning, Florida Department of

Children and Families (DCF) caseworkers came to their apartment to explain the

investigation process. They set up a forensic pathologist appointment for the girls,

and a medical appointment for them to be examined. Jane also started therapy.




                                          4
      The Baytown Texas Police Department also opened an investigation.

Detective Crowell, the investigating officer, worked in the Crimes Against

Children Division and testified that he had received training involving

investigation, case management, and child interview techniques. He also attended

continuing education courses on child sexual assault investigations.

      Crowell’s involvement in appellant’s case began when he received an initial

Child Protective Services (CPS) report alleging sexual conduct between Jane and

appellant. He also received a case file from the sheriff’s office in Florida, which

contained the original offense report, and supplemental reports, and medical and

interview-type paperwork relating to the investigation of Jane’s allegations. He

contacted Lacrisa and the people who conducted the Florida investigation. When

Crowell reached out to him, appellant provided a verbal statement. Eventually,

Crowell decided that the case warranted presentation to the district attorneys’

office, and he issued a warrant for appellant’s arrest.

      Jane testified at trial. At the time of trial in September 2014, she was

15years old. She testified that the first time she recalls meeting her father was the

beginning of the fourth grade, when she was nine years old and he came to visit in

Florida. She and her sister then rode on a bus with appellant to Texas. She was

excited because Baytown was a new town and she was excited to see her father.

When they arrived, Jane first lived in a one-bedroom apartment with her sister


                                           5
Ann, appellant, and appellant’s wife, Latoyia. Appellant and his wife slept in the

bedroom, and Jane and Amy slept on an air mattress on the floor. After that

apartment, they moved to a different one-bedroom apartment, and eventually to a

three-bedroom apartment. Finally, they moved into a house, and then later to a

different house.

      Jane testified that “something bad” happened to her while she was living in

Baytown. The first time “something bad” happened was when she was 10 years

old, they were living in the second one-bedroom apartment, and it was Christmas.

It was dark outside, and after midnight. She was there with Ann, appellant,

Latoyia, and her cousin, Jack. Jack and Ann were asleep, and Latoyia was in her

room. Jane testified that she was sitting on the couch and appellant came out and

asked if she wanted to go with him to a friend’s apartment in the same complex to

get some picture frames. When they got to the apartment, it was dark, empty, and

Jane could tell that the person who had lived there had moved out.

      Rather than pick up the frames, appellant took Jane into the bedroom and

said they “were just going to lay down for a little bit.” When they laid down side-

by-side, appellant told Jane to get on top of him. After Jane complied, appellant

started talking about Lacrisa and asking if Jane wanted to move back home to

Florida. Jane answered “no” because she had not been in Texas that long and was

happy there. Appellant told Jane that was good because her mother “doesn’t love


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me the way he does.” Appellant then told Jane to rock back and forth on top of

him while she was sitting on his chest. Jane testified that appellant then “put his

hands on my waist and pushed me down on his parts.” With the aid of a male doll,

Jane identified appellant’s “parts” as his penis.

      Jane testified that appellant then went into the bathroom to pee, and returned

with his pants pulled down. At this point Jane was scared because she “knew

something bad was going to happen.” She thought about running, but was scared

she would not get far. Appelant pulled Jane up on her knees and told her to put his

penis in her mouth while he held onto the back of her head with his hands. She

testified to what his penis looked like and that she complied. After a while he

stopped and pulled his pants back up. When they walked back to their apartment,

Ann and Jack were still asleep and Latoyia was still in her bedroom awake, as Jane

heard her laugh when appellant went into the bedroom. Jane went back to the

couch. Ten minutes later, appellant came back out of the bedroom and took Jane

back to the empty apartment.

      When they got there, appellant told Jane to take her pants off. Appellant

took Jane into a bedroom closet, got on top of her, and “put his parts inside of me.”

Using an anatomically correct doll, Jane testified that appellant penetrated her

vagina. Appellant used his hands to put his penis partway inside of her, and she

could feel something wet coming outside of her vagina.


                                           7
        When they put their clothes back on and left, appellant told her he would tell

her what he got her for Christmas. That did not make her feel better, and she was

still in a lot of physical pain when they got back to their apartment, but it did not

last very long. She and appellant never discussed what happened, and nothing

happened again while they were still living in that one-bedroom apartment. She

did not think anything like that would happen again.

        Jane testified that after they moved into the three-bedroom apartment,

appellant came and got her out of her bedroom one night and took her into his

bedroom. Her step-mother was at work, so they were alone in appellant’s room.

He told her to lie down on the bed, to take her pants off; he pulled his penis out of

his boxer shorts and again penetrated her vagina. She testified that it hurt and

again she felt something moist coming out of her body. She was supposed to go to

church the next morning with her aunt, but did not because she felt like she could

not walk and did not have feeling in one leg. Her aunt returned her to her

apartment after she collapsed and wanted to take her for medical attention, but

appellant said no, that she was alright and took Jane and Ann inside and shut the

door.    There were no more incidents while they lived at that three-bedroom

apartment.

        When they next moved into their first house, Jane testified that there were no

incidents of appellant touching her there. When they moved into their last house,


                                           8
Jane testified that the incidents started up again. Latoyia stayed with her mother

Monday through Friday so that she would not have to drive so far to work during

the week. When she was gone, Jane testified that appellant would come into the

room she shared with sister in the middle of the night to get her. More than once

he did this and took her to his bedroom and told her to put his penis in her mouth.

He did not penetrate her vagina at any point while they lived at that house, but

sometimes he would make her kiss him, “Like, make-out kiss.”

       Jane testified that she never told her mother on the phone that anything was

wrong because she and Ann were only allowed to talk on the phone with their

mother when they were in appellant’s room where he could hear them. She never

considered telling Latoyia what was going on because she would “just go back and

tell him; and then he would just deny it, and we would get in trouble for it.”

       She said she first disclosed to her mother what had happened after they

moved back to Florida and were watching an episode of “Law and Order” that

involved sexual abuse. Her mother immediately broke down and cried. She did

not tell her mother any details about any of the incidents. She did explain the

details with others, such as the forensic interviewer, and the doctor that examined

her.

       Jane testified that she never said “no” over the years these incidents

happened because she felt she was small and did not have a choice. She reached


                                          9
the point that she no longer enjoyed living with her father because she did not feel

safe having to wonder every night about the next time he was going to come into

her room. Jane was cross-examined about why she gave more details about more

incidents during her court testimony than during her initial interviews.

      Doctor Danielle Madera, a psychologist with the Harris County Children’s

Assessment Center also testified.     She previously worked as a child forensic

interviewer in Florida, working with children dealing with physical and sexual

abuse. Madera explained that oftentimes during the forensic interviews, there is

only partial disclosure, and that more information comes out over time. Also, they

are constrained during the interviews by only being able to answer neutral, fact-

gathering questions that are asked, but not cover every scenario. She testified to

her opinion that Jane’s demeanor in court was “very consistent with a child that’s

been sexually abused and traumatized and now faced with sitting in the room with

a person who raped her.” She testified that she had not “completed any studies,

case studies, research, anything like that with regard to children’s performance in a

courtroom,” but that she has “had a chance to observe children testify previously.”

On cross-examination, she conceded it was possible that Jane “appeared

traumatized on the witness stand” because she “just couldn’t face her father if she

wasn’t being truthful.” She also clarified that she doesn’t not know if Jane was the

victim of sexual abuse or not, and that she was not testifying as to an opinion of


                                         10
that.   She believes the way in which Jane “articulated herself is consistent with

sexual abuse,” but that “the only two people that know whether or not that incident

happened are the victim and defendant.”

        Finally, the State called Ms. Rita Deorio, who testified that she lives in

North Carolina, and that the police and USAA fraud department are currently

investigating how a $2,500 check was issued from her account to appellant. She

has never met appellant and did not write him a check.

B.      Appellant’s case

        Jane’s cousin Kenny testified on appellant’s behalf. He and appellant are the

same age, and Kenny lived with appellant off-and-on over the years. He testified

that on Christmas Eve 2008—the night of Jane’s first allegation—he was on the

apartment porch drinking with friends until at least 1:00 a.m. Christmas morning.

He usually slept on the couch at that apartment, but gave no specific testimony

about where he slept that night. He testified to his belief that things seemed

“normal” between appellant and Jane when he lived with appellant.

        Appellant also called Dr. Rebecca Girardet, a child-abuse pediatrician who

leads the division of Child Protection Pediatrics at the University of Texas Medical

School. She testified that “approximately 95 percent of children presenting for

sexual abuse don’t have any physical signs of trauma.” She explained that genital

and anal tissues heal quickly, and oftentimes completely without scarring. Pre-


                                          11
puberty scars are much harder to detect once a girl goes through puberty due to

estrogen changes. Girardet testified that she reviewed Jane’s original examiner’s

report and the photographs from that exam. The report stated there were tears in

the hymen; but it is not clear from the photographs if the hymen had tears or there

were folds, because when hymens estrogenize, they get folds. In her experience,

tears in a child can only be caused by penetrating trauma. She clarified that

activities like riding a bike and taking “straddle falls” may cause bruising of the

outer labia, but not affect the interior protected area.

       Appellant called Sonya Scott with CPS who opened a 2009 physical abuse

case regarding Jane. Her records indicate that Jane’s initial outcry was to school

staff. Scott visited the home and Jane denied the outcry. Scott did not see

anything of concern in the home. After talking to appellant, Jane, Ann, Scott, and

school staff, Scott closed the investigation based on lack of evidence to support the

allegation. Both Jane and Ann denied physical or sexual abuse. Jane reported that

she was happy.

      Finally, appellant testified on his own behalf. He testified that when he and

Lacrisa split up, the girls were in CPS care. While he did not take Jane and Ann

when he split from their mother, he talked to them on the phone occasionally. He

testified that he went and got them some weekends when he still lived in Florida

before he moved to Texas in 2002. He saw them once after he moved, in 2005, for


                                           12
his father’s funeral in Georgia. He next saw the girls in 2008 when he visited

relatives in Florida, and his cousin took him to see Lacrisa and his daughters.

Later that weekend, Lacrisa and he agreed that he could offer the girls more

stability in Texas, so they would return home with him.

      He testified that on Christmas Eve of 2008—the night Jane alleged the first

abuse happened—the girls each opened one gift at midnight while appellant and

Latoyia were cooking for the next day. Kenny and several friends were outside at

that time. According to appellant, the girls then went to sleep about 1:30 or 2:00

am.

      He testified that he received a home visit from CPS in 2009, and that he

cooperated. According to appellant, the girls could talk to their mother privately

on the phone whenever they wanted. He also claimed that in 2010, when Lacrisa

came to pick up the girls, they were just going with her for a summer visit—not to

move back to Florida.

      He first heard the allegations about sexually assaulting Jane in January of

2011 through a phone call from Lacrisa. Appellant was “upset and furious.” He

was upset because his “daughters were sexually molested,” but he “kn[e]w it

wasn’t from me.” He denied the allegations, but advised Lacrisa to take the girls

directly to the hospital.




                                        13
      Appellant believes that Jane accused him of sexual assault because “she was

told to do it.” He believes that Lacrisa was angry about appellant taking tax

deductions for the girls when Lacrisa wanted to take the tax deductions. He and

Lacrisa argued about this topic before the sexual assault allegations came up.

      Appellant testified that he loves his daughters and would never hurt them. It

hurt him to see Jane testify because “they still putting her though all this,” and

because “they is someone that’s making her say all these things, because I know

my daughter.” He testified that he never touched Jane in a sexual way, and never

asked Jane to touch him in a sexual way. He has no idea what Jane is talking about

with the empty apartment or the frames that they were supposedly supposed to

collect. He testified that Jane was not truthful in her testimony about the sexual

assaults.

      He first testified to his belief that Jane was sexually assaulted by someone

else in Florida, if she was sexually abused at all. He later testified to his belief that

she was actually making the whole thing up.            From his perspective, Lacrisa

convinced Jane to lie because Lacrisa was motivated by wanting to keep the girls

so she could collect tax refunds associated with the girls if they stayed with her.

                               ISSUES ON APPEAL
      Appellant complains his trial counsel was ineffective in three points of error:

      1.     “Appellant received ineffective assistance of counsel when
             counsel failed to object to the expert testimony of the State’s

                                           14
            expert that the courtroom behavior of the complainant was
            consistent with a child who has been abused and is sitting in
            the courtroom with a person who raped her.”

      2.    “Appellant received ineffective assistance of counsel when
            counsel failed to object to the expert testimony of the State’s
            expert that in effect gave the opinion the complainant was
            telling the truth.”
      3.    “Appellant received ineffective assistance of counsel when
            counsel failed to attack the testimony of the State’s expert by
            requesting a hearing on the admissibility of the testimony when
            the expert testified there were no studies to support her
            opinion.”

                           STANDARD OF REVIEW

      We consider claims of ineffective assistance of counsel under the two-prong

test adopted in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984). To prevail on an ineffective assistance of counsel claim, appellant must

show that (1) counsel’s performance was deficient, meaning it fell below an

objective standard of reasonableness, and (2) the deficiency prejudiced the

defendant, meaning there was a reasonable probability that, but for the counsel’s

deficient performance, the results of the trial would have been different. Id.; Ex

parte Napper, 322 S.W.3d 202, 246, 248 (Tex. Crim. App. 2010). The burden is on

appellant to prove by a preponderance of the evidence that counsel was ineffective.

See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

      The first prong of Strickland requires that the challenged acts or omissions

of counsel fall below the objective standard of professional competence under

                                        15
prevailing professional norms. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010). Appellate courts are highly deferential to trial counsel and avoid

evaluating counsel’s conduct in hindsight. Ingham v. State, 679 S.W.2d 503, 509

(Tex. Crim. App. 1984). Thus, courts must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance;

that is, the defendant 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 2061.

      The second prong of Strickland requires a reasonable probability that the

outcome of the case would have been different. Id. at 694, 104 S. Ct. 2068. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome, meaning that counsel’s errors must be so serious that they deprive

appellant of a fair trial. Smith v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App.

2009).

      Allegations of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the ineffectiveness. Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001). “In the rare case in which trial counsel’s

ineffectiveness is apparent from the record, an appellate court may address and

dispose of the claim on direct appeal.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.

Crim. App. 2011). When the record is silent as to the reasoning behind an alleged


                                         16
deficiency by trial counsel, “we will assume that counsel had a strategy if any

reasonable sound strategic motivation can be imagined.” Id.; see also Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[I]n the absence of evidence

of counsel’s reasons for the challenged conduct, an appellate court . . . will not

conclude the challenged conduct constituted deficient performance unless the

conduct was so outrageous that no competent attorney would have engaged in it.”).

                                       ANALYSIS

      All three of appellant’s issues involve complaints about counsel’s handling

of Dr. Madera’s testimony. The constitutional right to counsel in a criminal

prosecution exists to protect the fundamental right to a fair trial. Strickland, 466

U.S. at 684, 104 S. Ct. at 2063. The crux of appellant’s three points of error boils

down to the complaints that (1) Madera’s statement that Jane’s courtroom

demeanor was “consistent with” a child who has been sexual abused was an

unobjected-to, improper comment on Jane’s credibility, and (2) that counsel should

have requested a hearing to challenge Madera’s qualifications to make that

statement because it was not based on scientific studies.

       “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Id. at 686, 104

S.Ct. at 2064. “This right does not mean errorless or perfect counsel whose


                                         17
competency of representation is to be judged by hindsight.” Robertson v. State,

187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

      Appellant argues that the record “shows a breakdown of professional

competence in the area of expert testimony.” Specifically, he takes issue with

Madera’s testimony that Jane’s demeanor was consistent with a child who had

been abused and was sitting in the courtroom with someone who raped her, while

Madera admitted that no studies supported her conclusion. Appellant argues that

this testimony runs afoul of cases holding “it is error to allow an expert witness to

comment on another witness[’s] credibility.” In support, he cites five cases: Yount

v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993) (“We hold that Rule 702

does not permit an expert to give an opinion that the complainant or class of

persons to which the complainant belongs is truthful.”); Lane v. State, 257 S.W.3d

22, 27 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (finding counsel’s

representation deficient because he failed to preserve complaint for review about

one doctor’s testimony that “false accusations of childhood sexual assault are very

rare” and a counselor’s testimony that she had determined that the complainant

was telling the truth); Miller v. State, 757 S.W.2d 880, 884–85 (Tex. App.—Dallas

1988, pet. ref’d) (reversing for new trial because counsel’s assistance was

ineffective by failing to object to several witnesses’ opinion testimony that child

was generally truthful and was telling the truth about being sexually abused, and


                                         18
expert’s opinion testimony that expert would be able to tell if child was being

untruthful, which was especially harmful in light of lack of physical evidence);

Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d)

(reversing for new trial because counsel’s assistance was ineffective in failing to

object to the “the witnesses [who] were asked to explain and then to comment

directly on the factors they used in determining if this child was telling the truth”

because appellant was likely harmed by counsel’s “error in failing to object to

extensive, inadmissible, and critical testimony,” given that the only other testimony

about appellant came from the victim); Fuller v. State, 224 S.W.3d 823, 836 (Tex.

App.—Texarkana 2007, no pet.) (reversing for new trial because “the victim’s

credibility was the only real issue at trial and counsel repeatedly or entirely failed

to object to the introduction of testimony on the truthfulness and credibility of the

victim’s allegations” by numerous witnesses such that counsel’s conduct in

“allowing the State unfettered and unchecked bolstering of the victim was so

outrageous that no competent attorney would have engaged in it”).

      The State responds that these cases are inapposite. It argues that, [co]ntrary

to appellant’s assertions, Dr. Madera did not comment on whether the complainant

was telling the truth,” and the State disputes the suggestion that appellant “would

not have been convicted, but for her testimony.”




                                         19
      “The two prongs of Strickland need not be analyzed in a particular order.”

See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). We need

not decide if appellant’s counsel’s performance was deficient because we agree

with the State that—examining the record as a whole—appellant has failed to carry

his burden to demonstrate prejudice. “The Court of Criminal Appeals has noted

that the standard for showing prejudice on a claim of ineffective assistance of

counsel is more demanding than the showing needed to prove harm under the

Rules of Appellate Procedure.” Thomas v. State, 445 S.W.3d 201, 210 (Tex.

App.—Houston 2013, pet. ref’d) (citing Martinez, 330 S.W.3d at 903). “To

prevail, appellant must show a reasonable probability that but for his counsel’s

deficient performance, the result of the proceeding would have been different. Id.

(citing Bone, 77 S.W.3d at 833).

      Determination of a witness’s credibility and truthfulness lies within the

province of the jury. Yount, 872 S.W.3d at 710. Although Madera opined that

Jane’s demeanor was “very consistent with a child that’s been sexually abused and

traumatized and now faced with sitting in the room with a person who raped her,”

she acknowledged explicitly that credibility and truthfulness is a matter for the

jury, stating that she does not have any basis to know if Jane was sexually abused

or not, and agreeing that it is for the “jury to decide.”




                                           20
         Here, there was physical evidence of sexual assault introduced into

evidence, and Jane gave detailed testimony about appellant’s actions. Unlike the

witnesses in the cases appellant cites, Madera was clear that she was in fact not

opining on whether Jane was telling the truth, and she agreed that Jane’s courtroom

demeanor could also be consistent with a child that is lying and does not want to

face the person she is falsely accusing.         The State elicited testimony during

Madera’s direct examination that she was not opining on whether Jane had been

sexually abused and that her opinions about her observations were not based on

studies, but only on her experience. Appellant’s counsel followed up in cross-

examination by eliciting again testimony that Madera was not opining that Jane

had been abused, and that Madera has had “encounter[s] where a child was not

being truthful.”

         Given this context, appellant has not demonstrated that had his counsel

objected to Madera’s testimony or requested a hearing on her qualifications, there

is a reasonable probability that the outcome of the case would have been different.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

         We overrule appellant’s three ineffective assistance of counsel points of

error.

                                   CONCLUSION

         We affirm the trial court’s judgment.


                                           21
                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

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




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