                                                                                        PD-0647-15
                          PD-0647-15                                   COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                     Transmitted 5/29/2015 12:57:52 PM
                                                                         Accepted 6/1/2015 2:35:07 PM
                                                                                        ABEL ACOSTA
                   NO. _________________________________                                        CLERK

                                     IN THE


               COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                                AUSTIN, TEXAS


                JUAN DAVID GARZA, JR.
                                  APPELLANT,

                                        VS.

                             THE STATE OF TEXAS,
                                  APPELLEE

               APPELLANT’S
    PETITION FOR DISCRETIONARY REVIEW
                                NO. 03-13-00180-CR
                         COURT OF APPEALS FOR THE
                   THIRD DISTRICT OF TEXAS AT AUSTIN
                    On appeal from Cause Numbers CR-08-0846
                  in the 22nd District Court of Hays County, Texas
                          Honorable Gary Steel, Presiding

KEITH S. HAMPTON                                           CYNTHIA L. HAMPTON
Attorney at Law                                            Attorney At Law
keithshampton@gmail.net                                    hamplaw2@gmail.com
State Bar No. 08873230                                     State Bar No. 11937450

                          ATTORNEYS FOR APPELLANT
                               1103 Nueces Street
                               Austin, Texas 78701
                                 (512) 476-8484
                              (512) 477-3580 (Fax)

                     Oral Argument is Respectfully Requested

June 1, 2015
               IDENTITY OF JUDGE, PARTIES AND COUNSEL

       Pursuant to the provisions of Rule 68.4(a), Texas Rules of Appellate Procedure,
the identity of the judge, parties and counsel are as follows:

Judge:                    Honorable Gary L. Steele, 22nd Judicial District Court


Parties:                  Juan David Garza

                          State of Texas


Counsel:                  Keith S. Hampton
                          Cynthia L. Hampton
                          1103 Nueces Street
                          Austin, Texas 78701
                          (Counsel for the Petition for Discretionary Review)


                          Ricky D. Jones
                          1108 Lavaca Street, 412416
                          Austin, Texas 78714
                          (Counsel for Appeal)



                          Sherri Tibbe, Hays County District Attorney
                          Brian Erskine, Hays County Assistant District Attorney
                          Christopher P. Johnson,
                          Hays County Assistant District Attorney
                          Gerard Peaches, Hays County Assistant District Attorney
                          Hays County District Attorney’s Office
                          Hays County Government Center
                          712 Stagecoach Trail, Suite 2057
                          San Marcos, Texas 78666


                                           i
                                        TABLE OF CONTENTS
                                                                                                              PAGE

IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         The Court of Appeals erred by concluding that professional errors
         do not violate the Sixth Amendment if committed “inadvertently.”

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-8

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

         Garza v. State, No. 03-13-00180-CR (Tex.App. – Austin, delivered
         April 9, 2015)(not designated for publication)




Juan David Garza, Jr.                                                    Appellant’s Petition for Discretionary Review
                                                           ii
                                     INDEX OF AUTHORITIES

Garcia v. State, 308 S.W.3d 62 (Tex. App. – San Antonio 2009, no pet.). . . . . 7-8

Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1991)(opinion on rehearing)
.................................................................. 3

Strickland v. Washington, 466 U.S. 688 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Williams v. State, 301 S.W.3d 675 (Tex.Crim.App. 2009).. . . . . . . . . . . . . . . . . 5-6


RULES AND STATUTORY PROVISIONS

Tex.Penal Code § 21.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex.R.App.Proc. 66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex.R.App.Pro. 66.3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex.R.App.Pro. 66.3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

Tex.R.App.Pro. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex.R.App.Pro. 66.3(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5




Juan David Garza, Jr.                                                   Appellant’s Petition for Discretionary Review
                                                          iii
                   STATEMENT REGARDING ORAL ARGUMENT

        Appellant has raised important questions of first impression in this Court and

believes that oral argument would help clarify the issues presented in his petition for

discretionary review. Therefore he respectfully requests oral argument.




Juan David Garza, Jr.                               Appellant’s Petition for Discretionary Review
                                          iv
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

        NOW COMES Juan David Garza, Appellant in this case, by and through his

attorneys, Keith S. Hampton and Cynthia L. Hampton, and, pursuant to the provisions

of TEX.R.APP.PRO. 66, et seq., moves this Court to grant discretionary review, and

in support will show as follows:



                             STATEMENT OF THE CASE

                 Appellant was indicted for indecency with a child by contact. Tex. Penal

Code §21.021(a) (West 2013); (CR, Vol. 1, p. 7). On January 23, 2013, Appellant

entered a plea of not guilty. (Vol. 9, p. 33). After a jury trial, Appellant was found

guilty. (Vol. 15, pp. 18-20). On February 1, 2013, the jury sentenced Appellant to

prison for nine years, but recommended suspension of the sentence and imposition

of a $5,000 fine. (Vol. 16, p. 153). On February 6, 2013, Appellant filed a motion for

new trial and motion in arrest of judgment, which was overruled by operation of law.

(CR, Vol. 1, p.136). On March 12, 2013, Appellant timely filed notice of appeal.

(CR, Vol.1, p.150).




Juan David Garza, Jr.                                  Appellant’s Petition for Discretionary Review
                                             1
                        STATEMENT OF PROCEDURAL HISTORY

        Appellant’s sole issue on appeal was ineffective assistance of counsel. The

conviction was affirmed in an opinion not designated for publication. Garza v. State,

No. 03-13-00189-CR (Tex.App. – Austin, delivered April 9, 2015)(not designated for

publication). Appellant filed a motion for rehearing which the Court of Appeals

denied on April 30, 2015. This petition is due to be filed on May 30, 2015. Because

May 30th falls on a Saturday, this petition is due Monday, June 2, 2015 , and therefore,

it is timely filed.

                                 Ground for Review:

The Court of Appeals erred by concluding that professional errors do not violate
the Sixth Amendment if committed “inadvertently.”


                                       Argument

        Appellant was charged with indecency with a child against his daughter, A.N.

Appellant’s counsel was aware that another daughter, S.G., had also accused him of

indecency with a child, resulting in an indictment in Travis County. Trial counsel

was given notice of the State’s intent to introduce this extraneous offense against

Appellant, specifically:

        [S.G.] told [her sister, A.N.] that the Defendant had touched the victim’s
        privates. The Defendant would dress the victim and his hand would


Juan David Garza, Jr.                                 Appellant’s Petition for Discretionary Review
                                            2
        brush against victim’s butt and vagina. The victim got under the covers
        of Defendant’s bed and Defendant touched her vagina over the clothes.
        The Defendant was crying because he had touched her vagina and he
        knew it was wrong. As Defendant was touching the victim, Defendant
        was breathing heavily and shaking.

(CR, Vol. 1, p. 69). Trial counsel confirmed he had watched both audio and a video

wherein S.G. made her accusations. (Vol. 9, pp. 62-63).

        The trial court held a hearing before any evidence regarding this extraneous act

appeared before the jury. (Vol. 9, pp. 58-62). At this hearing, the State explicitly

sought to introduce this extraneous offense to put “familial relationships ... in

context,” relying on Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.

1991)(opinion on rehearing). (Vol. 9, pp. 57-59). Trial counsel was therefore well-

aware his client was charged with sexual abuse against S.G. and that the State

planned to introduce proof of this extraneous offense.

        After the pretrial hearing, the trial court excluded this extraneous offense with

a warning:

        The ruling is that through this witness, at this time, I’m not going to
        allow the testimony [regarding S.G.]. And I want you to be careful – and
        I want the witness to listen to me, too. At this point I’m not allowing
        anything regarding [S.G.] and we’ll approach before we get there.

(Vol. 9, p. 64).

        Trial counsel then cross-examined Jones about her marriage, the different


Juan David Garza, Jr.                                 Appellant’s Petition for Discretionary Review
                                            3
homes she had lived in, the number of rooms in the homes, whether the rooms had

windows and solid doors, whether A.N.’s bed was queen-sized, and other irrelevant

facts. (Vol. 9, pp. 82-91). Eventually, trial counsel introduced evidence of the

relationships within the family, suggesting during his cross-examination of Jones that

Appellant had been a “really good father,” was a “great guy,” even the “backbone of

the family.” (Vol. 9, pp. 101-133; 156; 159-160).

        In light of trial counsel’s introduction of this evidence, the State sought to

introduce proof that Appellant was not such a great guy or the fine father his attorney

made him out to be. Specifically, the prosecution sought to show how Appellant

sexually abused S.G. in exactly the same way he was alleged to have abused A.N.

        Despite having opened the very door the State and trial court had so clearly

identified, trial counsel objected when the prosecution sought to open it. Overruling

the objection, the trial court stated, with some frustration:

        You’ve asked questions up to the present with this witness that’s on the
        stand. You’ve asked questions about, you know, the family relationship.
        You’ve asked questions about: “Was he the backbone?” “Did he treat
        these children differently?”

        You’ve just gone into this area and then you’re telling me, “Oh, but it’s
        not fair for them to rebut any of that.” And you have opened the door –
        you have kicked the door wide open on just about any subject inside this
        family by your cross-examination, which was hours.



Juan David Garza, Jr.                                Appellant’s Petition for Discretionary Review
                                           4
(Vol. 10, p. 10).

        Trial counsel argued, “You know, I really did not anticipate trying two cases

in one and I didn’t anticipate, you know, [S.G.’s case].” “[S.G.’s] outcry was not

what I thought was ever going to enter this trial.” (Vol. 10, pp. 10; 12). In other

words, counsel somehow failed to perceive that the excluded extraneous offense

became admissible because of his door-opening cross-examination, despite a written

notice, offense reports, audio and video recordings, an indictment and a pretrial

hearing.

        In light of the open door, the trial court then permitted Jones, a detective, A.N.

and S.G. herself to testify that Appellant molested S.G. as well. (Vol. 10, pp. 83-88;

Vol. 11, pp. 102-171; Vol. 12, pp. 33-186).

        The Court of Appeals agreed that counsel had opened the door to evidence of

the extraneous offense against S.G. Garza, slip op. at 9 (Appendix, p. 9). However,

the appellate court concluded he had done so “inadvertently,” and thus no error had

occurred. Id. Accordingly, under the Court of Appeals’ Sixth Amendment analysis,1

Appellant was afforded his right to the effective assistance of counsel.

        Accidental errors are the antithesis of strategy. By definition, these errors


        1
            The Court of Appeals mistakenly referred to Appellant as “Moore.” Garza, supra, p. 2.


Juan David Garza, Jr.                                       Appellant’s Petition for Discretionary Review
                                                 5
necessarily cannot be attributed to strategy. The Court of Appeals’ equation of

inadvertent errors with strategic decisions would remove errors altogether from well-

established Sixth Amendment analysis. Review is thus necessary pursuant to

Tex.R.App. Proc. 66.3 (b) & (c).

        The appellate court relied on this Court’s opinion in Williams v. State, 301

S.W.3d 675 (Tex.Crim.App. 2009), in which trial counsel was found effective despite

the fact he opened the door to two extraneous murders. However, in Williams,

counsel deliberately elicited this proof as part of his trial strategy, as the record

plainly revealed:

        THE COURT: ... you understand that in asking about Crime Stoppers
        money and her bias and the fact that she was friends with Terrell Ball–

        [DEFENSE COUNSEL]: Yes. That opens the door.

        THE COURT: – that that opens the door.

        [DEFENSE COUNSEL]: Yes. And I’ve talked to my client and I’ve
        talked to him before this date and that’s what we choose to do. So I
        understand it will open the door.

Williams v. State at 686. The Court of Appeals misconstrued Williams. Accordingly,

this Court should grant review, pursuant to Tex.R.App. Proc. 66.3 (c) & (f), to clarify

that Williams does not equate inadvertent acts with intentional, strategic decisions.

        Trial decisions like those in Williams are strategic and are the opposite of


Juan David Garza, Jr.                               Appellant’s Petition for Discretionary Review
                                           6
inadvertent acts or omissions. Strategic decisions are subject to a determination of

objective reasonableness, while accidents are not because they are the result of no

professional judgment at all. This Court should grant review to clarify this

cornerstone of Sixth Amendment ineffective assistance analysis. Tex.R.App. Proc.

66.3 (b).

        The Supreme Court of the United States has established the familiar ineffective

assistance analysis. This analysis begins with the “strong presumption” that the

challenged action “might be considered sound trial strategy.” Strickland v.

Washington, 466 U.S. 688-90 (1984). This presumption must first be rebutted before

the attorney’s acts or omissions can be considered to be professional errors. Id. By

equating accidental door-opening with strategy, the Court of Appeals transformed the

“strong presumption” into an irrebutable one, contrary to well-established Sixth

Amendment analysis. Review is thus necessary pursuant to Tex.R.App. Proc. 66.3

(b), (c) & (f).

        Ineffective assistance jurisprudence forbids hindsight review, i.e., the temporal

advantage of what counsel should or should not have done. Strickland, supra at 688-

689.     The Court of Appeals’ analysis implicitly violated this prohibition by

considering trial counsel’s invitation to otherwise inadmissible testimony in the light



Juan David Garza, Jr.                                 Appellant’s Petition for Discretionary Review
                                            7
of its retrospective forgiveability. In other words, this Court of Appeals considered

counsel’s clumsiness in hindsight, so that the “welcome-mat” he inadvertently

splayed against the door of admissibility is not something to ever be called an “error.”

This error-removing analysis is grounded in exactly the sort of distorting ruminations

Strickland meant to preclude. Such after-the-fact judicial reflection to determine

whether an act or omission is a forgiveable error contravenes a specific but

fundamental requirement of Sixth Amendment analysis under Strickland. Review is

thus necessary pursuant to Tex.R.App. Proc. 66.3 (b), (c) & (f).

        The Court of Appeals’ opinion also conflicts with Garcia v. State, 308 S.W.3d

62 (Tex.App. – San Antonio 2009, no pet.). In Garcia, trial counsel opened the door

to extraneous sexual misconduct against another child when he asked whether he had

ever been accused of a sex offense before, and he opened the door to various other

bad acts when he asked him whether he had ever been arrested before. Garcia, 308

S.W.3d at 66. The Fourth Court of Appeals concluded there could have been “no

reasonable trial strategy for Garcia’s counsel to elicit and open the door to the similar

extraneous offense and the numerous instances of ‘bad acts.’” Garcia, 308 S.W.3d

at 67. In this case, there was likewise no reasonable trial strategy for trial counsel’s

door-opening questions, and the door-opening was as much professional error as the



Juan David Garza, Jr.                                 Appellant’s Petition for Discretionary Review
                                           8
counsel in Garcia. This Court should grant review to resolve the conflict between

these two decisions, pursuant to Tex.R.App. Proc. 66.3(a).

        The issue in this petition is narrow. Appellant does not seek a full Sixth

Amendment ineffective assistance of counsel analysis from this Court. Instead,

Appellant asks this Court to clarify that errors committed by trial counsel do not cease

to be errors because they are committed accidentally. The question whether the error

prejudiced Appellant is best left to the Court of Appeals.




Juan David Garza, Jr.                                Appellant’s Petition for Discretionary Review
                                           9
                             PRAYER FOR RELIEF

        WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that

this Court grant discretionary review and, after full briefing on the merits, issue an

opinion reversing the Court of Appeals’ judgment and remanding this case to the

appellate court for appropriate Sixth Amendment analysis.

                                       Respectfully submitted,




                                       ____________________________________
                                       KEITH S. HAMPTON
                                       SBN 08873230
                                       keithshampton@gmail.com




                                       _______________________________
                                       CYNTHIA L. HAMPTON
                                       SBN 11937450
                                       1103 Nueces Street
                                       Austin, Texas 78701
                                       (512) 476-8484
                                       (512) 477-3580 (fax)
                                       hamplaw2@gmail.com
                                       ATTORNEYS FOR APPELLANT




Juan David Garza, Jr.                               Appellant’s Petition for Discretionary Review
                                         10
                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing Petition
for Discretionary Review has been electronically delivered or mailed on this day, May
29, 2015, to the Hays County District Attorney’s Office to
christopher.johnson@co.hays.tx.us.




                                               KEITH S. HAMPTON


                        CERTIFICATE OF COMPLIANCE

      I hereby certify that this Petition for Discretionary Review contains 1490 words
and complies with Rule 9.4(i)(3) and 9.4(i)(2)(D)of the Texas Rules of Appellate
Procedure.




                                               KEITH S. HAMPTON




Juan David Garza, Jr.                                Appellant’s Petition for Discretionary Review
                                          11
                                   APPENDIX




                        Garza v. State, No. 03-13-00180-CR

    (Tex.App. – Austin, delivered April 9, 2015)(not designated for publication)




Juan David Garza, Jr.                             Appellant’s Petition for Discretionary Review
                                        12
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00180-CR



                                Juan David Garza, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-08-846, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Juan David Garza, Jr. of the offense of indecency with

a child by contact and assessed punishment at nine years’ imprisonment and a $5,000 fine.1 The

district court rendered judgment on the verdict and, on the jury’s recommendation, suspended

imposition of the sentence and placed Garza on community supervision for ten years. In a single

issue on appeal, Garza asserts that he received ineffective assistance of counsel during trial. We will

affirm the judgment of conviction.


                                         BACKGROUND

                Garza was charged with engaging in sexual contact with his stepdaughter, A.N., by

touching her genitals. During trial, A.N., who was by then nineteen years old, testified that when




       1
           See Tex. Penal Code § 21.11(a)(1).
she was eight years old, Garza had entered her bedroom at night, “cuddled with her,” and then

“pick[ed] [her] up and put [her] on top of him, with [her] legs around the sides of him; and he took

his hands under [her] shorts, under [her] underwear, and touching [her] butt towards—[her] vagina

in a stroking-type motion.” Several days later, A.N. further recounted, she had reported this incident

to her mother, Stephanie Jones, and also informed her that Garza had engaged in similar behavior

on two or three other occasions. Jones also testified at trial and described A.N.’s account in a

manner consistent with A.N.’s testimony. Jones added that she had also confronted Garza with

A.N.’s allegations. In response, Jones indicated, Garza had not denied the allegation and had instead

become “upset, very apologetic, emotional, crying, saying he was sorry, it was an accident.” A.N.

similarly testified that Garza had cried and apologized to her “for making [her] feel uncomfortable.”

                After confronting Garza, Jones had taken no further action in response to her

daughter’s allegations. Approximately five years later, however, A.N. made an outcry to her aunt,

Carrie Jones. Carrie2 testified that she had discussed the matter with her husband, who had notified

CPS. Melissa Rodriguez, the program director of the children’s advocacy center in Hays County,

subsequently conducted an interview with A.N. in which A.N. told her that Garza had touched her

“butt” and her “privates.” A video recording of the interview was admitted into evidence. Other

evidence considered by the jury, which we discuss in more detail below as it becomes relevant to

Moore’s issue on appeal, included the testimony of the investigating law enforcement officer,

Lieutenant Jeri Skrocki of the Hays County Sheriff’s Office; Garza’s biological daughter, S.G., who




       2
           We use her first name to distinguish her from Stephanie Jones.

                                                  2
was permitted to testify that Garza had engaged in similar sexual contact with her; and Garza, who

denied that he had ever contacted A.N. or S.G. in a sexual manner.

                The jury found Garza guilty as charged and assessed punishment as indicated above.

After the district court rendered judgment on the jury’s verdict and suspended imposition of the

sentence, Garza filed a motion for new trial, which was denied by operation of law. This appeal

followed.


                                          JURISDICTION

                Before turning to the merits of Garza’s appeal, the State argues that we lack

jurisdiction because Garza failed to timely file his notice of appeal.3 As a general rule, a defendant

must file his notice of appeal “within 30 days after the day sentence is imposed or suspended in

open court.”4 However, a defendant may extend the appellate deadline to 90 days if he “timely files

a motion for new trial.”5 A motion for new trial is timely if filed no later than 30 days after the date

the trial court imposes or suspends sentence in open court.6 Garza’s sentence was suspended in open

court on February 1, 2013. On February 6, he timely filed a motion for new trial, thereby extending

the deadline to file his notice of appeal to 90 days. Garza filed his notice of appeal on March 12,

2013, within the 90-day deadline.


       3
         See Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014) (“‘A timely notice of appeal
is necessary to invoke a court of appeals’ jurisdiction.’” (quoting Olivo v. State, 918 S.W.2d 519,
522 (Tex. Crim. App. (1996))).
       4
           Tex. R. App. P. 26.2(a)(1).
       5
           Id. R. 26.2(a)(2).
       6
           Id. R. 21.4(a).

                                                   3
                  The State contends that Garza’s motion for new trial was ineffective to extend

the appellate deadline because the record does not demonstrate that he presented that motion to

the district court.7 However, Rule 26.2 extends the appellate deadline upon the timely “filing” of

a motion for new trial.8 There is no additional requirement of presentment. In contending otherwise,

the State cites to Carranza v. State, in which the Court of Criminal Appeals held that in order

to preserve error relating to a trial court’s refusal to hold a hearing on a motion for new trial,

an appellant is required to both file the motion and present it to the trial court.9 However, that rule

has no effect on the deadline for filing a notice of appeal. Because Garza timely filed his notice of

appeal within the 90-day deadline triggered by the timely filing of his motion for new trial, we

have jurisdiction over this appeal.10 Accordingly, we overrule the State’s challenge to this Court’s

jurisdiction.


                                                MERITS

                  In his sole issue on appeal, Garza asserts that his trial counsel rendered ineffective

assistance. Specifically, Garza complains that trial counsel provided ineffective assistance by:

(1) “opening the door” to the admission of extraneous-offense evidence concerning Garza’s alleged

sexual contact with his biological daughter, S.G.; (2) failing to call an expert witness to provide


        7
         See id. R. 21.6 (“The defendant must present the motion for new trial to the trial court
within 10 days after filing it, unless the trial court in its discretion permits it to be presented and
heard within 75 days from the date when the court imposes or suspends sentence in open court.”).
        8
             See id. R. 26.2.
        9
             See 960 S.W.2d 76, 79-80 (Tex. Crim. App. 1998).
        10
             See Tex. R. App. P. 26.2(a)(2).

                                                    4
testimony concerning false allegations of sexual abuse; and (3) conducting himself “inappropriately”

during trial, including being “repeatedly reprimanded” by the district court and ultimately held

in contempt.

                 “Ineffective-assistance-of-counsel claims are governed by the familiar Strickland

framework: To prevail, the defendant must show that counsel’s performance was deficient and that

this deficient performance prejudiced the defense.”11 “An attorney’s performance is deficient if it

is not within the range of competence demanded of attorneys in criminal cases as reflected by

prevailing professional norms, and courts indulge in a strong presumption that counsel’s conduct was

not deficient.”12 “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.’”13 In other words, in the absence of a record

explaining the reasons for counsel’s decisions, we will not find counsel’s performance deficient if

any reasonably sound strategic motivation can be imagined.14

                 Strickland establishes a similarly high bar for establishing prejudice: “A defendant

suffers prejudice if there is a reasonable probability that, absent the deficient performance, the

outcome [of the proceeding] would have been different.”15 “A reasonable probability is a probability


       11
         Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)).
       12
             Id. (citing Strickland, 466 U.S. at 689).
        13
             Id. at 308 (quoting Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)).
        14
             See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
        15
             Nava, 415 S.W.3d at 308 (citing Strickland, 466 U.S. at 694).

                                                    5
sufficient to undermine confidence in the outcome.”16 “It will not suffice for Appellant to show ‘that

the errors had some conceivable effect on the outcome of the proceeding.’”17 “Rather, he must

show that ‘there is a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.’”18

                  “It is a rare case in which the trial record will by itself be sufficient to demonstrate

an ineffective-assistance claim.”19 As a result, “claims of ineffective assistance of counsel are

generally not successful on direct appeal and are more appropriately urged in a hearing on an

application for a writ of habeas corpus.”20


Extraneous-offense evidence

                  Garza first asserts that his trial counsel rendered ineffective assistance by “opening

the door” to the admission of extraneous-offense evidence related to Garza’s alleged sexual contact

with S.G. S.G. is the biological daughter of Garza and A.N.’s mother, Stephanie Jones, and is thus

A.N.’s half-sister. A.N. is the older of the two by approximately ten years.




       16
            Id.
       17
            Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.
at 693).
       18
            Id. (quoting Strickland, 466 U.S. at 695).
       19
         Nava, 415 S.W.3d at 308 (citing Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011)).
       20
         Lopez, 343 S.W.3d at 143 (citing Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim.
App. 2002); Ex parte Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App. 2004); Mitchell v. State,
68 S.W.3d 640, 642 (Tex. Crim. App. 2002)).

                                                     6
                  In 2011 or 2012, after charges had been filed against Garza in this case, S.G. told

A.N. that Garza had touched her genitals, too. At trial, the State initially attempted to elicit evidence

of S.G.’s outcry during its direct examination of Stephanie Jones. The district court excluded the

evidence at that juncture, sustaining objections by Garza’s counsel that the testimony sought to be

elicited was inadmissible hearsay and would have an unfairly prejudicial effect substantially

outweighing its probative value.21 However, the district court ultimately permitted the State to

explore the subject after Garza’s trial counsel extensively cross-examined Jones regarding past

statements in which she had purportedly characterized Garza favorably to police investigators as a

“great guy” and the “backbone of the family.” Concluding that Garza’s counsel had “kicked the door

wide open on just about any subject inside this family by your cross-examination,” the district court

permitted the State to elicit testimony from Jones on redirect regarding S.G.’s outcry and later

allowed S.G. herself to testify to the underlying alleged conduct.

                  As support for his assertion that opening the door to extraneous-offense evidence

constitutes deficient performance, Garza relies primarily on Garcia v. State.22             During the

defendant’s testimony in that case, trial counsel asked the defendant if he had “ever sexually

assaulted anybody” or had “ever been accused of sexually assaulting anybody,” and the defendant

answered both questions in the negative.23 The State then proceeded, during its cross-examination

of the defendant and later during its case in rebuttal, to present evidence tending to show that the



        21
             See Tex. R. Evid. 403, 801.
        22
             308 S.W.3d 62 (Tex. App.—San Antonio 2009, no pet.).
        23
             Id. at 66.

                                                   7
defendant had been accused of sexual assault in the past.24 Although trial counsel objected to the

admission of this evidence on multiple grounds, the trial court overruled the objections, concluding

that trial counsel had opened the door to the extraneous-offense evidence “by inquiring about prior

sexual assaults as well as by offering evidence of the defendant’s good character.”25 The reviewing

court concluded that counsel’s conduct constituted deficient performance:


       Here, by eliciting testimony from Garcia on direct examination broadly disclaiming
       that he had ever sexually assaulted someone, defense counsel opened the door for
       the State to cross-examine Garcia, and to present rebuttal evidence of an extraneous
       offense of the same character as the charged aggravated sexual assault. Similarly,
       by eliciting testimony that Garcia was a “law abiding” citizen, defense counsel
       opened the door for the State to cross-examine Garcia concerning other “bad acts”
       to correct any false impression created by his direct testimony and to impeach
       his credibility. . . . Given the inherently prejudicial nature of extraneous offense
       evidence, the fact that the evidence would not have been otherwise admissible by the
       State during guilt/innocence, and the fact that Garcia’s defense rested almost entirely
       on his credibility, there could have been no reasonable trial strategy for Garcia’s
       counsel to elicit and open the door to the similar extraneous offense and the
       numerous instances of “bad acts.”[26]


                  We conclude that Garcia is distinguishable from this case. Unlike Garcia, trial

counsel here did not attempt to “broadly disclaim” that Garza had engaged in other sexual

misconduct or suggest that Garza was a “law-abiding” citizen. Instead, the focus of counsel’s cross-

examination was to emphasize that Jones, while claiming to have heard outcries of child molestation

by Garza, had quite incongruously termed him a “great guy” and the “backbone of the family” to



       24
            Id.
       25
            Id. at 66-67.
       26
            Id. at 68 (internal citations omitted).

                                                      8
police investigators thereafter. In short, counsel’s questions were in the nature of impeachment of

Jones with prior inconsistent statements, seeking to discredit her prior testimony recounting the

alleged outcries and her truthfulness generally.27 Counsel likewise divulged on the record that his

examination of Jones also sought to elicit evidence “about motive on these people’s parts to come

up with this tale and to back it up every way they can.”

                We cannot conclude on this record that this constitutes deficient performance. Jones

was the State’s designated outcry witness during trial.28 Her credibility was thus a critical issue

in the case. It would not fall below an objective standard of reasonableness for trial counsel, as

part of his defensive strategy, to aggressively and thoroughly attack Jones’s credibility on cross-

examination, including on matters relating to her past favorable observations, opinions, and

statements concerning Garza, even if in doing so counsel might have inadvertently opened the

door to evidence related to S.G.’s outcry.29 On this record, we cannot conclude that trial counsel’s


       27
          In fact, as the district court observed during a bench conference, Garza’s counsel
mounted “an attack on [Jones’s] character for about three of the four hours of cross-examination.”
Throughout this cross-examination of Jones and other witnesses for the State, counsel repeatedly
attempted to attack their credibility and implied that they were lying about various aspects of either
the incident or the investigation.
       28
            See Tex. Code Crim. Proc. art. 38.072.
       29
           See, e.g., Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (finding no
deficient performance when trial counsel opened door to evidence of extraneous murders allegedly
committed by defendant during testimony of State’s witness when trial counsel did so in order to
show that witness had “a bias as to why she’s testifying”); Johnson v. State, 432 S.W.3d 552, 558-60
(Tex. App.—Texarkana 2014, pet. ref’d) (finding no deficient performance when trial counsel
inadvertently opened door to extraneous offenses when “there is nothing in the record here to suggest
that defense counsel purposely elicited extraneous-offense evidence from his client or otherwise
intentionally opened the door to such evidence”); Josey v. State, 97 S.W.3d 687, 695-96
(Tex. App.—Texarkana 2003, no pet.) (finding no deficient performance when trial counsel opened
door to evidence of extraneous sex offense during cross-examination of State’s outcry witness;

                                                  9
cross-examination of Jones was outside “the range of competence demanded of attorneys in

criminal cases.”30


Expert testimony

                 Garza next complains of trial counsel’s failure to present expert testimony

“regarding a child’s motives for making false allegations of sexual misconduct against a parent.”

Such testimony was necessary, Garza contends, to rebut testimony from the State’s experts,

specifically Jeri Skrocki and Melissa Rodriguez.”31

                 Assuming without deciding that the failure to call an expert witness in this case would

constitute deficient performance, we cannot conclude on this record that Garza was prejudiced by

any such deficiency. To prove prejudice from the failure to call expert witnesses, the record must

show that such witnesses were available to testify and that appellant would have benefitted from

their testimony.32 Here, the record contains no such showing. Prior to trial, two individuals were


concluding that “[c]ounsel’s inquiry represents an attempt to undermine the credibility of . . . [the
outcry witness] . . . . We cannot say attempting to discredit one . . . of the State’s primary witnesses
is improper trial strategy or otherwise falls below the level of an objectively reasonable standard of
conduct”). Cf. Robertson v. State, 187 S.W.3d 475, 484-86 (Tex. Crim. App. 2006) (finding trial
counsel’s performance deficient when counsel intentionally elicited testimony from defendant related
to defendant’s prior convictions, as part of trial strategy to prove that defendant was being truthful).
        30
             See Nava, 415 S.W.3d at 307.
       31
          Skrocki provided testimony relating to the concept of “delayed outcries” and the process
of “grooming,” whereby an abuser will attempt to “desensitize” a potential victim to make them
“feel more comfortable with sexual activity.” Rodriguez provided similar testimony relating to the
“grooming” process and also provided testimony relating to the fabrication of outcries.
       32
         See Perez, 310 S.W.3d at 894 (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim.
App. 1983)); Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986); Washington v. State,
417 S.W.3d 713, 725 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

                                                   10
designated as possible expert witnesses by the defense—Shelley Graham, a licensed professional

counselor, and Matthew Ferrara, a psychologist. The specific matters to which they would have

testified if called are not disclosed in the record. A third possible expert, identified only as George

Parker, was mentioned by trial counsel during a hearing on counsel’s motion for continuance. At

that hearing, counsel disclosed that Graham “said she doesn’t feel competent to testify about a false

outcry” and that Parker would not be available to testify until several days after the trial was

scheduled to conclude. Additionally, even if Parker had been available to testify, there is nothing

in the record summarizing what his testimony would have been. Thus, on this record, there is no

way for this Court to determine whether Garza would have benefitted from the testimony of any of

the possible experts for the defense. Accordingly, we cannot conclude that there is a reasonable

probability that, absent trial counsel’s failure to call an expert witness, the outcome of the proceeding

would have been different.33


Counsel’s behavior during trial

                Finally, Garza asserts that trial counsel was ineffective in the manner in which

he conducted himself during trial. Specifically, Garza refers to several occasions in which the

district court, outside the presence of the jury, admonished trial counsel for not following the court’s

instructions and repeatedly disagreeing with the court’s evidentiary rulings, including its ruling that


        33
           See, e.g., Ex parte Flores, 387 S.W.3d 626, 638 (Tex. Crim. App. 2012); Perez,
310 S.W.3d at 894-95; Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007). Cf.
Ex parte Overton, 444 S.W.3d 632, 640-41 (Tex. Crim. App. 2014) (finding prejudice prong
satisfied when record included summary of expert’s qualifications and specific matters to which
expert would have testified; concluding that expert’s “credibility combined with his testimony would
have had a strong impact on the jury and sufficiently undermine[d] the outcome of the trial”).

                                                   11
counsel had “opened the door” to S.G.’s outcry. Additionally, on the first day of trial, outside the

presence of the jury, the district court held trial counsel in contempt after he had asked a witness a

question that the court had instructed him not to ask.34

               Assuming without deciding that counsel’s conduct during trial fell below an objective

standard of reasonableness, there is nothing in the record to suggest that trial counsel’s conduct

influenced the jury’s verdict in any manner or that the jury would have reached a different

verdict absent counsel’s conduct. Moreover, the district court’s admonishments and sanctions

of trial counsel took place outside the presence of the jury. On this record, Garza has failed to

demonstrate that there is a reasonable probability that, absent counsel’s unprofessional conduct, the

result of the proceeding would have been different.35

               We overrule Garza’s sole issue on appeal.




       34
           During a bench conference, trial counsel had explained to the district court that he
intended to question A.N.’s mother regarding an alleged incident in which A.N. had “demanded”
that her maternal grandfather assist her in procuring the “day-after abortion pill.” The district court
responded to the request as follows: “I can’t imagine that’s relevant. If you want a hearing on that
at the end of the day, I’ll give it to you, but, no.” Almost immediately thereafter, trial counsel
proceeded to question the witness regarding the alleged incident, prompting the district court’s
contempt ruling. Trial counsel insisted that he had not intended to disobey the court, but had merely
misunderstood the court’s ruling.
       35
           See White v. State, 190 S.W.3d 226, 230 (Tex. App.—Houston [1st Dist.] 2006, no pet.);
Devis v. State, 18 S.W.3d 777, 785-87 (Tex. App.—San Antonio 2000, no pet.); see also Hansley
v. State, No. 01-12-01023-CR, 2014 Tex. App. LEXIS 80, at *6-7 (Tex. App.—Houston [1st Dist.]
Jan. 7, 2014, pet. ref’d) (mem. op., not designated for publication) (“While trial counsel’s behavior
and the sanctions meted out by the trial judge suggest a want of professionalism, the alleged
events are not sufficient to establish ineffective assistance under Strickland.”); Samuels v. State,
No. 05-03-00683-CR, 2004 Tex. App. LEXIS 4575, at *3-4 (Tex. App.—Dallas May 20, 2004,
pet. ref’d) (not designated for publication) (counsel being held in contempt does not “invariably”
lead to conclusion that counsel provided ineffective assistance).

                                                  12
                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed: April 9, 2015

Do Not Publish




                                              13
