                                  NO. 12-15-00258-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

THOMAS ERWIN BAKER,                              §      APPEAL FROM THE 7TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Thomas Erwin Baker appeals his conviction for continuous sexual abuse of a child. In
one issue, Appellant contends that he received ineffective assistance of counsel. We affirm.


                                          BACKGROUND
       D.G., Appellant’s stepdaughter, testified to being sexually abused by Appellant on
several occasions over a period of time. She was under the age of fourteen during the abuse. In
February 2015, the Texas Department of Family and Protective Services (the Department)
received a call regarding the abuse. After an approximately three-month investigation, the
Department found a reason to believe that sexual abuse occurred. The State subsequently
indicted Appellant for continuous sexual abuse of a child, to which he pleaded “not guilty.” The
jury found Appellant guilty of continuous sexual abuse of a child, and the trial court sentenced
Appellant to imprisonment for life.


                                      INEFFECTIVE ASSISTANCE
       In his sole issue, Appellant contends that trial counsel was ineffective by failing to object
to certain outcry testimony. He contends that Jennifer Lloyd was the first adult to whom D.G.
made an outcry and should have been the only person allowed to testify as an outcry witness.
Appellant complains that the testimony of Kathy Johnson, who was also allowed to testify as an
outcry witness, would have been excluded had defense counsel objected. He contends that
Johnson’s testimony allowed the State to develop its allegations on multiple occasions, reinforce
D.G.’s testimony, bolster its case, and overwhelm Appellant’s presumption of innocence.
Standard of Review and Applicable Law
          An appellant complaining of ineffective assistance must establish a two-pronged test.
See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under the first prong, the appellant
must show that counsel’s performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at
2064; Tong, 25 S.W.3d at 712. “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The appellant must show that
“counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at
688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Under the second prong, an appellant must
show that the “deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104
S. Ct. at 2064; Tong, 25 S.W.3d at 712.        Prejudice requires a showing of “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; Tong, 25 S.W.3d at 712. A
reasonable probability is that sufficient to undermine confidence in the outcome. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. The appellant must establish both
prongs by a preponderance of the evidence or the ineffectiveness claim fails. Tong, 25 S.W.3d
at 712.
          Review of trial counsel’s representation is highly deferential. Id. We indulge in a
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant bears
the burden of overcoming the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.
2002). The record on direct appeal is rarely sufficiently developed to fairly evaluate a claim of
ineffectiveness. Id. at 833.



                                                2
Facts
        Before trial, defense counsel agreed with the State that each outcry statement was “a little
bit different than the other.” At trial, D.G. testified that Appellant made her get on top of him
and “go back and forth” and took her pants off on one occasion. She also testified that Appellant
sometimes placed his hand in her pants and touched her “private area,” and sometimes placed her
hand in his pants and made her touch his “private area” using a “squeezing position.” Jennifer
Lloyd testified that D.G. attended a sleepover at Lloyd’s home, after which Lloyd’s daughter told
her that Appellant was making D.G. do “sex things.” Lloyd spoke with D.G., who said that
Appellant made her crawl on top of him and touch him. Kathy Johnson testified that D.G. told
her Appellant made her get on top of him, touched her “middle” area, moved her up and down,
and made her touch and squeeze his penis. D.G. told Johnson that the abuse happened “often.”
Analysis
        A trial court may permit multiple outcry witnesses to testify about different instances of
abuse committed by the defendant against the victim. Tear v. State, 74 S.W.3d 555, 559 (Tex.
App.—Dallas 2002, pet. ref’d). “If the child victim first described one type of abuse to one
outcry witness, and first described a different type of abuse to a second outcry witness, the
second witness could testify about the different instance of abuse.” Id. In this case, Lloyd
testified that D.G. told her Appellant made her crawl on top of him and touch him. Johnson
testified that D.G. told her Appellant touched her “middle” area, moved her up and down, and
made her touch and squeeze his penis. These are two different types of abuse. Accordingly,
Lloyd and Johnson were both proper outcry witnesses. See id. Defense counsel was not required
to make frivolous arguments and objections. See Brennan v. State, 334 S.W.3d 64, 74 (Tex.
App.—Dallas 2009, no pet.).
        Because the complained-of evidence was admissible, Appellant has failed to establish the
first prong of Strickland, i.e., that counsel’s performance was deficient. See Strickland, 466
U.S. at 687, 104 S. Ct. at 2064; see also Tong, 25 S.W.3d at 712. Appellant’s ineffectiveness
claim fails. See Tong, 25 S.W.3d at 712. We overrule Appellant’s sole issue.


                                           DISPOSITION
        Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.




                                                 3
                                                                BRIAN HOYLE
                                                                   Justice

Opinion delivered June 15, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 15, 2016


                                         NO. 12-15-00258-CR


                                    THOMAS ERWIN BAKER,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0478-15)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
