          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                           NO. 03-02-00163-CR



                                    Mickey Craig Adams, Appellant


                                                      v.


                                     The State of Texas, Appellees




              FROM THE CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
               NO. 0795566D, HONORABLE WAYNE F. SALVANT, JUDGE PRESIDING



                               MEMORANDUM OPINION


                 Appellant Mickey Craig Adams appeals from a district-court judgment following a jury trial

in which he was found guilty of aggravated sexual assault of a child and indecency with a child by contact.

Tex. Pen. Code Ann. '' 21.11, 22.021 (West 2003). The jury assessed punishment at forty years=

confinement for the first count and twenty years= confinement for the second. Appellant brings this appeal

asserting that: (1) the district court erred by failing to sustain appellant=s objection that the testimony of a

Child Protective Service (ACPS@) worker was hearsay because she was not the Aoutcry@ witness as defined

by article 38.072 of the Texas Code of Criminal Procedure and by failing to conduct a hearing to determine
that issue, as required by the same statute, and (2) appellant=s counsel was ineffective. Tex. Code Crim.

Proc. Ann. art. 38.072 (West Supp. 2003). We will affirm the district court=s judgment.


                                                   FACTS

                  Appellant=s stepdaughter, H.B., told her brother that appellant had touched her

inappropriately while she pretended to sleep. The brother related H.B.=s statement to a person at the

school he and H.B. attended.1 As a result of what the brother revealed, the school called an investigator

with CPS, Crystal Clay, to interview H.B. During the interview, the then eleven-year-old girl explained, in

detail, appellant=s actions. H.B. told Clay that appellant had touched her private area and inserted his finger

into her vagina on several occasions. The State charged appellant with two counts of aggravated sexual

assault of a child and three counts of indecency with a child by contact. A jury found him guilty of one count

of each charge.




                                              DISCUSSION

Outcry testimony




        1
            The record does not reflect the person at the school to whom the brother reported the statement.



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                By his first point of error, appellant asserts that the district court erred in failing to sustain his

objection that Clay was not the Aoutcry@ witness and in failing to conduct a hearing in order to determine

that issue. Article 38.072 of the Texas Code of Criminal Procedure is a limited exception to the preclusion

of hearsay evidence. Tex. Code Crim. Proc. Ann. art. 38.072. The statue defines Aoutcry@ statements as

the victim=s statements made to the first person, other than the defendant, eighteen years of age or older,

which describe the alleged offense. Id. ' (2)(a). The statute only applies to certain charged offenses,

including indecency with a child and other sexual offenses under chapter 21 of the penal code, when the

offense is committed against a child twelve years of age or younger. Id. ' 1. As a further predicate for

admission of outcry-witness testimony, the statute requires that Athe trial court find, in a hearing conducted

outside the presence of the jury, that the statement is reliable based on time, content, and circumstances of

the statement.@ Id. ' 2(b)(2).

                Here, the district court did not conduct a hearing to determine that the statement was

reliable based on the time, content, and circumstances of the statement. The Texas Court of Criminal

Appeals has evaluated a similar situation. In Long v. State, the defendant was tried for aggravated sexual

assault of a four-year-old child. 800 S.W.2d 545 (Tex. Crim. App. 1990). The State called an outcry

witness; however, when defense counsel objected to the witness=s testimony as hearsay, the district court

overruled the objection and allowed the witness to testify without a hearing to determine her competency as

an outcry witness. Id. at 545. The court of criminal appeals held that the State had the burden to satisfy

each element of the predicate for admission of outcry testimony pursuant to article 38.072; thus, there was

error. Id. at 548. The court also held that the Ahearsay@ objection considered within the context of the

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record was adequate notice to the district court that counsel was objecting to the witness testifying before a

hearing had been conducted; therefore, the error was preserved.2 Id.

                We hold that the failure of the district court to conduct a hearing to determine that the outcry

statement was reliable based on the time, content, and circumstances of the statement was error. When the

State called Clay as the Aoutcry@ witness, defense counsel said, AYour honor, I object. I think we need to

have a voir dire to determine whether this is a proper outcry witness.@ Appellant objected in a manner that

made it reasonably clear to the district court what his objection meantCthat he wanted a hearing on the issue

of the competency of the case worker to testify as an outcry witness. We hold that appellant preserved the

error.


Harmless-Error Analysis

                Having held that the district court erred by overruling appellant=s objection, we must

examine whether that error was harmful. Tex. R. App. P. 44(2)(b). In harmless-error analysis, we must


         2
          The State asserts that unless defense counsel clearly objects to the omission of a hearing in the
article 38.072 context, the error is waived. See Rodriguez v. State, 762 S.W.2d 727, 731 (Tex.
App.CSan Antonio 1988), pet. dism=d, 815 S.W.2d 666 (Tex. Crim. App. 1991); Hightower v. State,
736 S.W.2d 949, 953 (Tex. App.CEastland 1987), aff=d, 822 S.W.2d 48 (Tex. Crim. App. 1991).
However, we find the standards set forth in Long to be controlling. See Long v. State, 800 S.W.2d 545,
548 (Tex. Crim. App. 1990).




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consider five factors: (1) the source of the error; (2) the nature of the error; (3) whether or to what extent it

was emphasized by the state and its probable collateral implications; (4) the weight a juror would probably

place on the error; and (5) whether declaring the error harmless would encourage the state to repeat with

impunity. Harris v. State, 790 S.W.2d 568, 587-89 (Tex. Crim. App. 1989).

                  With regard to the first factor, the error arose from the State=s failure to comply with all the

predicate requirements set out in article 38.072 that would allow Clay=s testimony to be excepted from

hearsay preclusion. See Tex. Code Crim. Proc. Ann. art. 38.072, '2.

                  In reviewing the second factor, we must determine whether the State intended to taint the

evidence at trial by offering inadmissible evidence. Higginbotham v. State, 807 S.W.2d 732, 735 (Tex.

Crim. App. 1991). The record in this case shows that the State answered the defense=s objections with

assertions that it would be able to prove Clay=s qualification as an outcry witness through her testimony.

The record also shows that the State had complied with the notice provisions set out in article 38.072. Tex.

Code Crim. Proc. Ann. art. 38.072, ' 2(b)(1) (requiring party intending to call outcry witness to notify

adverse party at least fourteen days before proceeding begins that they intend to do so, and whom they will

call, and provide adverse party with written summary of statement). Given the fact that the State gave

defense counsel notice of its intention to call Clay as an outcry witness and that defense counsel did not

object to the testimony on the ground of surprise, it does not appear that the State was trying to taint the

trial by offering inadmissible evidence. See Nelson v. State, 893 S.W.2d 699, 703 (Tex. App.CEl Paso

1995, no pet.).




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                 The third factor requires this Court to evaluate whether, or to what extent, the error was

emphasized by the State and its probable collateral implications. As to the first prong of the third factor, the

record reflects that the State did not emphasize Clay=s testimony. The direct outcry testimony was brief and

to the point. In his opening argument, the State never directly mentioned Clay=s testimony. The State

mentioned Clay but only in the context of other admitted evidence, e.g., the audio tape of her interview with

H.B.: AListen to the audio tape again. That audio tape rings true. The CPS worker, Crystal, did not lead

her, just asked her what happened, what happened, what happened.@ Later on, in closing argument the

State again mentioned Clay but not her outcry testimony:


        . . . immediately the school administrator said we have to report this, they called the CPS
        hotline and Crystal Clay is up there the next day. And what does she do? She doesn=t get
        in there and say tell me about how your father is molesting you, she goes in there and says,
        let=s explore the allegations your brother made. She lets [H.B.] tell the truth, you know,
        what happens. And then she says, well do you know what bad touching is? Well, they
        touch your private parts. Have you ever been touched badly? . . . . Crystal has to draw it
        out . . . . Crystal never brings up the name of the father, it comes out of [H.B.] first. And
        that tape pretty much stops right there and Crystal told you why. They need to get it on
        videotape and that=s what they did.


None of the State=s argument addressed Clay=s testimony as the outcry witness; it only references the audio

tape made at the first interview with H.B.

                 As to the second prong, we must examine whether Clay=s testimony disparaged a sole

defense and its impact on the outcome of the case. See Higginbotham, 807 S.W.2d at 737. Clay=s

testimony was not the only evidence of the assaults that appellant perpetrated against H.B. H.B. testified

extensively about each sexual encounter that she endured with appellant. The audio tape of Clay=s first



                                                       6
interview with H.B. also details the accounts of abuse. Further, the testimony that Clay gave as the outcry

witness is merely a relation of the conversation that Clay recorded in her first interview with H.B. Appellant

did not object to the admission of the audio tape. We have listened to the tape. Any harm caused by

allowing Clay to testify without a hearing is markedly diminished by the fact that the same evidence was

allowed, without objection, through the audio tape. Clay=s testimony merely corroborated that of H.B.=s

testimony in court and on the audio tape and had little or no collateral implications.

                 With regard to the fourth factor, the weight a juror would probably place on the error, the

record shows that although the State did not stress the testimony of Clay, appellant=s attorneys relied heavily

on her testimony in their closing argument to highlight discrepancies between H.B.=s testimony in court and

her first statement to Clay. It is probable that any weight the jury gave to Clay=s testimony was mitigated by

the fact that the same testimony was in turn used against the State.

                 The fifth factor requires this Court to inquire whether declaring this error harmless would

encourage the State to repeat the error with impunity. Because the harm analysis is intensely fact-specific,

our holding in this particular case would not motivate the State to repeat the error. Although the district

court erred by not conducting a hearing to establish Clay as the outcry witness under article 38.072, the

error was harmless. We overrule appellant=s first point of error.


Ineffectiveness of Counsel

                 By his second point of error, appellant asserts that he received ineffective assistance of

counsel. Appellant=s sole claim of ineffectiveness of counsel rests on the fact that his counsel did not object

to arguably damaging testimony by a probation officer during the sentencing phase at his trial. The standard

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of review for ineffectiveness of counsel, either retained or appointed, is set forth in Strickland v.

Washington. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57

(Tex. Crim. App. 1986) (adopting Strickland). This standard now applies to both phases of a bifurcated

trial. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). The claimant, under the

Strickland standard, must prove that his counsel=s representation so undermined the Aproper functioning of

the adversarial process that the trial cannot be relied on as having produced a just result.@ Strickland, 466

U.S. at 686. A defendant=s claim that counsel=s assistance was so defective as to require reversal of a

conviction has two components. First, the convicted defendant must show that his counsel=s performance

was deficient; second, he must show the deficient performance prejudiced the defense. See id. at 687.

                In order to show prejudice, the defendant must demonstrate that there is reasonable

probability that but for the counsel=s deficient performance, the result of the proceedings would have been

different. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The defendant has the

burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. See

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). If the defendant fails to make the

required showing of either deficient performance or prejudice, his claim must fail. See id.

                The review of a claim of ineffective assistance of counsel is highly deferential. See

Strickland, 466 U.S. at 689. We must indulge a strong presumption that trial counsel=s conduct falls within

a wide range of reasonable representation and that the challenged action might be considered sound trial

strategy. See McFarland, 928 S.W.2d at 500. We assess the totality of counsel=s representation rather




                                                     8
than his or her isolated acts or omissions. See Strickland, 466 U.S. at 689; Ramirez v. State, 987

S.W.2d 938, 943 (Tex. App.CAustin 1999, no pet.).

                 The first step of the Strickland standard asks whether appellant=s counsel was deficient.

This Court must review the performance of appellant=s counsel by evaluating the totality of his performance

at the respective phase of appellant=s trial. Appellant must demonstrate that counsel=s performance was

unreasonable under the prevailing professional norms and that the challenged acts or omissions were not

sound trial strategy. Strickland, 466 U.S. at 688. We do not evaluate the effectiveness of counsel=s

performance in hindsight, but from counsel=s perspective at trial. Id.

                 Trial strategy may constitute ineffective assistance only if the record demonstrates that

counsel=s acts or omissions were without plausible basis. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). A conscious and informed decision on trial strategy cannot be the basis for ineffective

assistance of counsel unless it is so ill-chosen that it permeates the trial with obvious unfairness. The record

shows that appellant=s counsel was aware that the State intended to call the probation officer. The record

further shows that counsel used the same witness to elicit information on topics he wished to address. It is

reasonable that counsel did not object to the probation officer=s testimony because doing so would question

her credibility, and counsel in turn wanted to use the probation officer as a witness to make his points.

There is nothing in the record to overcome the strong presumption that counsel=s actions fell within the wide

range of reasonable professional assistance.

                 The record sheds light on a possible and reasonable trial strategy with regard to this witness

that explains why counsel made the specific omission of which appellant now complains. Under the


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circumstances, appellant cannot, in this appeal, overcome the strong presumption that his counsel=s actions

were the result of considered trial strategy that was reasonable from counsel=s perspective at trial. See

Jackson, 877 S.W.2d at 771. The trial-court record does not reveal ineffectiveness of counsel sufficient to

sustain such a claim. After reviewing the trial record, we hold that appellant has failed to establish that his

counsel=s performance was deficient. We overrule appellant=s second point of error.


                                             CONCLUSION

                 We affirm the district-court judgment.




                                                   Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: May 15, 2003

Do Not Publish




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