AFFIRM; Opinion Filed April 8, 2020




                                       In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                No. 05-18-01476-CR

                 MITCHELL LEE WILLIAMSON, Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

               On Appeal from the 397th Judicial District Court
                           Grayson County, Texas
                       Trial Court Cause No. 068084

                        MEMORANDUM OPINION
                  Before Justices Bridges, Whitehill, and Nowell
                            Opinion by Justice Nowell
      A jury convicted Mitchell Lee Williamson of sexual assault and sentenced

him to five years’ incarceration. The trial court suspended appellant’s sentence and

placed him on community supervision. In two issues, appellant argues the trial court

improperly precluded him from cross-examining the complainant, violating his

confrontation rights, and his attorney rendered ineffective assistance of counsel. We

affirm the trial court’s judgment.

      The complainant, A.N.L., knew appellant through her friend, Lindsey.

Lindsey lived with appellant, appellant’s mother, and appellant’s best friend, Nick.

Prior to the assault, A.N.L. and Nick had a sexual relationship.
      On Saturday, March 5, 2016, A.N.L. spent the night at Lindsey’s apartment.

When she fell asleep on the living room couch, appellant and Nick were not home.

A.N.L. awoke in the middle of the night when appellant and Nick returned to the

apartment; she asked them to be quiet before going back to sleep on the couch.

Appellant and Nick remained in the living room and awakened her again; she again

told them to be quiet. The men began playing a videogame while A.N.L. went back

to sleep. A.N.L. testified she woke up a third time “because I felt a pain. It felt like

a scratch, but it was inside of me. . . . [Appellant is] leaning over me, with his hands

under the blanket and between my legs with his finger inside of me.” Nick was

standing behind appellant. The men “were laughing, they were drunk. They thought

it was funny.”

      She yelled at appellant and ran into Lindsey’s bedroom. A.N.L. awakened

Lindsey, but then took her things and left the apartment. On Monday, March 7, she

reported the incident to the police and met with a SANE nurse for an exam.

      A. Confrontation Right

      In his first issue, appellant asserts the trial court prevented him from

effectively cross-examining A.N.L. about: (1) whether “rough sex” was part of

A.N.L.’s relationship with Nick, and (2) an alleged sexual assault against her by an

unrelated person occurring approximately two years earlier. Appellant argues the

trial court’s rulings violated his right of confrontation.



                                          –2–
         1. Relationship with Nick

         Appellant asserts the trial court improperly limited his cross-examination of

A.N.L. about her prior relationship with Nick.                      Before beginning his cross-

examination of A.N.L., defense counsel informed the trial court he wished to

question A.N.L. about whether her relationship with Nick included “rough sex” to

establish an alternative means for her injury. The prosecutor objected the testimony

was not relevant. Before ruling, the trial judge sought additional testimony from

A.N.L. Outside the presence of the jury, A.N.L. testified it was possible she had sex

with Nick a week prior to the assault, but “it wasn’t anything rough or crazy.” On

one occasion two to three months earlier, they had “rough sex,” but did not do so

again.

         Considering defense counsel’s request to place this testimony before the jury,

the trial court stated:

         Here is what I would say to the stuff about rough sex, her relationship
         with him, or whatever, might be on those panties other than Mr.
         Williamson [sic], some of that is going to be fair game, but I’m going
         to hold off until I hear from the SANE nurse.1
         ....
         I mean, obviously, I think they get to try to put on some defense that
         maybe the cut came from somebody other than Mr. Williamson. How
         far I let them go, I don’t know, because I need some medical testimony.



    1
      At this point in the trial, no evidence had been admitted about DNA on A.N.L.’s panties. Later, when
an investigator with the police department testified, a DNA report was admitted. The report states: “A
presumptive test for the possible presence of semen was negative. Spermatozoa, which confirm the
presence of semen, were identified on” panties. Neither the investigator nor any other witness offered
testimony about the DNA report.
                                                  –3–
      I assume, based on what you said in opening statement, the SANE nurse
      is going to testify that she examined her, and found a cut.
      ....
      So you understand, [defense counsel], I want to hear from the nurse,
      what she saw, what could cause it, how long it would last, and how long
      something might stay there from being there. And then once I
      understand that testimony, [defense counsel], I will let you go into some
      stuff about other sexual activity, other partners, could it have been
      anybody else other than him, those types of things. . . . I don’t know
      how far to let you go on extraneous stuff, because I don’t understand
      the frame - - or timeframe of when whatever the nurse saw could have
      happened.
      ....
      I think it’s fair game for [defense counsel] to get into asking her
      questions about whether she had any other partners in the immediate
      time frame. And, obviously, when the SANE nurse gets here, I mean,
      there is a report of something being on whoever’s panties those were, I
      guess, at the time, which I presume were hers, that’s going to be a
      question, those are fair questions that just need to be asked and
      answered. How far you get to go, like on the rough sex thing, how far
      a timeframe until I hear from the nurse you can’t go anywhere beyond
      the immediate timeframe.

The court consistently noted A.N.L. would remain subject to recall.

      Based on the trial court’s statements, appellant argues he was prevented from

cross-examining A.N.L. about “rough sex,” her relationship with Nick, and DNA on

her panties, thus effectively denying his constitutional confrontation rights. We

disagree. The trial court did not preclude appellant from questioning A.N.L. about

any of these topics. Rather, the trial court repeatedly stated it was delaying ruling

on appellant’s request until after the SANE nurse testified.          The trial court

specifically remained open to allowing the testimony about which appellant now

complains he was solicited from obtaining.


                                        –4–
      We conclude appellant failed to obtain a ruling on any objection and, thus,

failed to preserve his complaint for review.        See TEX. R. APP. P. 33.1(a)(2).

Additionally, appellant did not raise his confrontation clause objection in the trial

court and, therefore, has not preserved that objection for appeal. See TEX. R. APP.

P. 33.1; see also See Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App.

2005) (preservation requirements apply to confrontation complaints).

      2. Previous alleged sexual assault

      Appellant complains the trial court also prevented him from inquiring into a

previous sexual assault allegation that A.N.L. made against someone else. Appellant

argues this prior incident was A.N.L.’s primary motivation for aggressively seeking

prosecution against appellant. Outside the presence of the jury, defense counsel

explained that A.N.L. told the police that, a couple of years earlier, she was

assaulted; “a couple of times during this investigation she refers to that and says that

is why she is so insistent on making these allegations against Mr. Williamson.” The

State explained that two years earlier, A.N.L. was assaulted but never reported it;

she told the police that this time she was not going to do the same thing. The State

objected the testimony about the prior alleged assault was not relevant. Defense

counsel responded it would show “that possibly she’s exaggerating this incident at

the very least.”

      Initially the trial court ruled the testimony was admissible for the limited

purpose of showing motivation. Following a recess, however, the judge stated the
                                          –5–
“Court rethought its position based on 412,2 and others.” The court declined to

permit questioning about the alleged prior incident. The court then asked defense

counsel if he desired to make a record of any objections, and defense counsel stated:

“. . . we would object to the ruling based on the Texas Constitution, the United States

Constitution, Fifth and Sixth Amendments right to present our defense.”

       Appellant objected in the trial court that the ruling violated his right to present

a defense. Yet on appeal, he argues it violated his rights under the confrontation

clause. Appellant’s complaint in the trial court does not comport with his argument

on appeal. See Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017).

Nothing about appellant’s objection in the trial court was sufficient to make the trial

judge aware that the basis for his objection was violation of the Confrontation

Clause. Therefore, we conclude appellant has not preserved this argument for

appeal. See id.; see also TEX. R. APP. P. 33.1.

       We overrule appellant’s first issue.

       B. Ineffective Assistance of Counsel

       In his second issue, appellant argues his attorney rendered ineffective

assistance of counsel in violation of the Sixth Amendment to the United States

Constitution and Article I, Section 10 of the Texas Constitution. Appellant states



   2
    We assume the reference to 412 is to Texas Rule of Evidence 412 (Evidence of Previous Sexual
Conduct in Criminal Cases).


                                             –6–
his lawyer was ineffective because he failed “to consult or retain any experts to aid

him and to present evidence concerning the Reid Interrogation Technique3 and how

such an interrogation is not meant to get at the truth of an allegation. Defense

Counsel was also ineffective for not consulting or retaining any experts concerning

the DNA evidence or the SANE Examination, both highly scientific and outside the

normal experience of lay persons.”

        To prove a claim of ineffective assistance of counsel, appellant must show (1)

his trial counsel’s performance fell below an objective standard of reasonableness

and (2) there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 687–88 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011). “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.”          Strickland, 466 U.S. at 694.              When reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that counsel’s performance

falls within the wide range of reasonable professional assistance or trial strategy.

See Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).




    3
     Appellant’s brief states the Reid Interrogation Technique is a 9-step interrogation method commonly
used by police.


                                                 –7–
      Appellant has the burden to establish both prongs by a preponderance of the

evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009); see also Strickland, 466 U.S. at 697. Generally, a silent record that

provides no explanation for counsel’s actions will not overcome the strong

presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005). “If trial counsel has not been afforded the opportunity to

explain the reasons for his conduct, we will not find him to be deficient unless the

challenged conduct was ‘so outrageous that no competent attorney would have

engaged in it.’” Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013)

(quoting Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)). When

the record is silent, we may not speculate to find trial counsel ineffective. See

Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

      Appellant argues on appeal that had his counsel hired three experts, his trial

strategy may have been different. He discusses topics that could have been raised

with the experts, and assumes the experts would have testified favorably on his

behalf. Appellant, however, offers no evidence the experts would have testified in

a manner supportive of his case. Additionally, because appellant did not file a

motion for new trial, the record is silent regarding whether defense counsel consulted

or retained experts and, if he did not, his reasons.
                                          –8–
      Appellant’s arguments do not establish deficient performance under the

Strickland standard; instead, the arguments present a theory about what might have

been a better trial strategy and what the experts might have testified to. However,

failure to follow the best trial strategy or execute the strategy in the best way is not

the Strickland ineffective assistance standard.       Appellant must show that his

counsel’s performance fell below an objective standard of reasonableness.

Strickland, 466 U.S. at 687–88. On this silent record and in this direct appeal, he

has not done so.

      Having reviewed the entire record, we conclude appellant has not established

his trial counsel’s performance fell below an objective standard of reasonableness.

Therefore, we need not consider the second Strickland prong.              We overrule

appellant’s second issue.

      We affirm the trial court’s judgment.




                                             /Erin A. Nowell/
                                             ERIN A. NOWELL
                                             JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
181476F.U05




                                          –9–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

MITCHELL LEE WILLIAMSON,                      On Appeal from the 397th Judicial
Appellant                                     District Court, Grayson County,
                                              Texas
No. 05-18-01476-CR          V.                Trial Court Cause No. 068084.
                                              Opinion delivered by Justice Nowell.
THE STATE OF TEXAS, Appellee                  Justices Bridges and Whitehill
                                              participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 8th day of April, 2020.




                                       –10–
