Opinion filed October 29, 2009




                                              In The


   Eleventh Court of Appeals
                                           ___________

                                     No. 11-08-00005-CR
                                         __________

                          WESLEY DON RHODES, Appellant

                                                 V.

                               STATE OF TEXAS, Appellee


                            On Appeal from the 266th District Court

                                       Erath County, Texas

                                 Trial Court Cause No. CR12766


                             MEMORANDUM OPINION

        The jury convicted Wesley Don Rhodes of sexual assault of a child and assessed his
punishment at twenty years confinement. We affirm.
                                        I. Background Facts
        R.K. alleged that Rhodes, her father, sexually assaulted her while they were deer hunting.
R.K. testified that he forced her down on a bed; took off her clothes; and, while using a rubber glove
as a condom, penetrated her. Rhodes denied R.K.’s allegations. He contended that his wife was
manipulating R.K. to gain an advantage in their pending divorce action.
                                              II. Issues
        Rhodes challenges his conviction with four issues. Rhodes contends that the trial court erred
by admitting evidence of the victim’s good character, that the trial court erred by not holding an
evidentiary hearing on an ineffective assistance of counsel claim raised in his motion for new trial,
that the trial court deprived him of procedural due process when it ruled on his motion for new trial
because the State’s response included an affidavit that he had no opportunity to rebut, and that his
trial counsel was constitutionally ineffective.
                                       III. Character Evidence
        The State called Toby Cox as a character witness. Cox testified that he was an elementary
school assistant principal but that he previously worked as a high school teacher and counselor and
that R.K. was a high school student while he was a counselor. Cox testified over objection that
R.K.’s reputation for being a truthful and honest person was good. The State also called Stan McVey
as a character witness. He was an assistant high school principal who knew R.K. through FFA. He
too testified over objection that R.K. was a truthful person. Rhodes contends that the trial court erred
by overruling his objection to Cox’s testimony because R.K.’s character had not been previously
challenged. Rhodes does not challenge McVey’s testimony.
        To determine if character evidence is admissible, the Texas Court of Criminal Appeals
distinguishes between an attack on a witness’s character and an attack on the witness’s accuracy.
See Michael v. State, 235 S.W.3d 723, 726 (Tex. Crim. App. 2007). An attack on a witness’s
character is one that contends the witness is a liar and, therefore, is wrong about “X.” A challenge
to the witness’s accuracy is one that concedes the witness may normally be a truthteller but contends
that the witness is wrong about “X.” Only when a witness’s character for truthfulness is attacked
may it be rehabilitated with good character evidence. Id. Impeachment by a prior inconsistent
statement is normally just an attack on the witness’s accuracy. Id. The test for trial courts is whether
a reasonable juror would believe that a witness’s character for truthfulness has been attacked by
cross-examination, evidence from other witnesses, or statements of counsel. Id. at 728.
        The State argues that Rhodes attacked R.K.’s character several times. The State initially
points to Rhodes’s opening statement. Rhodes’s counsel told the jury that the allegations against his
client were false, that R.K.’s mother was manipulating her for divorce purposes, that R.K.’s mother


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had been physically abusive with her, and that psychological disorders run in her mother’s family.
To the extent these constitute a challenge to R.K. rather than her mother, they are not an attack on
R.K.’s character.
        The State next points to Rhodes’s cross-examination of the outcry witness, Clinton Lynn
Barnett. During that examination, Rhodes established that Barnett did not believe R.K. had told him
everything, that Barnett pressured R.K. to come forward with her allegation, and that R.K.’s story
became bigger and more elaborate with time. This is not a challenge to R.K.’s character but to the
accuracy of her allegation. Finally, the State points to Rhodes’s cross-examination of Don Beeson.
At the time of trial, Beeson was a county commissioner, but he previously served as a detective for
the Johnson County Sheriff’s Department and was responsible for investigating crimes against
children. Rhodes pointed out the inconsistencies between what R.K. told Beeson in an interview and
what Barnett had said in a statement. This is also a challenge to R.K.’s accuracy and not a challenge
to her character. Because Rhodes did not attack R.K.’s character for truthfulness, the trial court
abused its discretion by allowing Cox to offer character evidence.
        The erroneous admission of Cox’s testimony is nonconstitutional error. See Schutz v. State,
63 S.W.3d 442, 444-46 (Tex. Crim. App. 2001) (improperly admitted expert testimony on the
complainant’s truthfulness is nonconstitutional error). Nonconstitutional error must be disregarded
unless it affects the appellant’s substantial rights. TEX . R. APP . P. 44.2(b). Substantial rights are not
affected by the erroneous admission of evidence if, after examining the record as a whole, the court
has fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State,
78 S.W.3d 352, 355 (Tex. Crim. App. 2002). When a trial court errs by improperly admitting
evidence, an appellate court determines the likelihood that the error adversely affected the jury’s
decision by considering everything in the record, including: (1) testimony or physical evidence
admitted for the jury’s consideration; (2) the nature of the evidence supporting the verdict; (3) the
character of the alleged error and how it might be considered in connection with other evidence in
the case; (4) the jury instructions; (5) the State’s theory and any defensive theories; (6) closing
arguments; (7) voir dire; and (8) whether the State emphasized the error. Haley v. State, 173 S.W.3d
510, 518-19 (Tex. Crim. App. 2005).




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        Cox’s testimony was brief, constituting less than three pages of the record. The majority of
that testimony consisted of Cox identifying himself and explaining how he knew R.K.. Of relevance
to this appeal are only two questions. Cox was asked if he was familiar with R.K.’s reputation for
veracity and if that reputation was good. He answered both questions affirmatively without
elaboration.
        There was considerable testimony supporting the jury’s verdict. R.K. testified that her father
began assaulting her when she was eleven. In October 2005, during youth deer season, she and her
father went hunting with other family members. They arrived at the campsite first and ate lunch. He
then held her down on the bed and took her clothes off. He used a rubber glove as a condom and
penetrated her. She did not say anything about this to her other family members when they arrived
at the campsite or to anyone else at first, but she told her boyfriend in November 2006. She then told
her mother. R.K. testified that her mother confronted her father, that her father essentially admitted
molesting her, and that he then left the house.
        R.K.’s mother and brother confirmed that Rhodes confessed and apologized when confronted
with R.K.’s allegation and that he then left the house. R.K.’s mother testified that Rhodes was
scared and shaking after the confrontation and that he begged her not to call the police. Rhodes
denied that he had assaulted R.K., denied asking his wife not to call the police, and denied
confessing. His recollection was that his wife confronted him with R.K.’s allegation, that he was
shocked and angry, and that he said to her and his son: “[I]s all you want to hear me say is, yes, I did,
and -- because you held out on me.” He called his brother and nephew as witnesses, and both
testified that R.K. did not act unusually at the deer lease.
        Credibility was a key issue in this case because of the absence of corroborating evidence such
as physical evidence or eye-witness testimony. The State’s closing argument primarily addressed
R.K.’s credibility but made only minimal reference to Cox’s testimony. That testimony was merely
referenced as an additional reason why R.K. was believable.
        Considering the record as a whole, we are left with a fair assurance that the trial court’s error
influenced the jury only slightly. The testimony was brief, was not a principal part of the State’s
case, and did not differ in any material manner from McVey’s testimony. Judging the nature of the
evidence supporting the verdict and the character of the error and its relationship with the remainder


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of the State’s evidence, the trial court’s error did not have a substantial and injurious effect or
influence in determining the jury’s verdict or affect Rhodes’s substantial rights because the record
does not support the conclusion that Cox’s testimony supplanted the jury’s credibility determination.
C.f., Schutz, 63 S.W.3d at 445 (the danger posed by the erroneous admission of expert testimony on
a witness’s credibility is that the jury could allow this to supplant its decision). Issue One is
overruled.
                                                IV. Motion for New Trial
          Rhodes was sentenced on November 6, 2007. The trial court’s jurisdiction to consider a
motion for new trial expired on January 22, 2008. TEX . R. APP . P. 21.8(a). On December 4, Rhodes
filed a motion for new trial and alleged that his trial counsel was constitutionally ineffective in a
number of respects. That motion was supported by his own affidavit. Rhodes requested the trial
court to hold a hearing on this motion. On January 17, the State filed a response. The State’s
response included an unsworn written reply from Rhodes’s trial counsel to the ineffective assistance
allegations. Rhodes objected to consideration of his motion without a hearing, contending that he
had been given insufficient opportunity to marshal affidavits and to rebut trial counsel’s unsworn
statement.1 On January 22, the State filed a supplemental response. That response included an
affidavit from trial counsel, the substance of which was substantially similar to the initial unsworn
written response. The trial court overruled Rhodes’s objection and denied his motion for new trial.
          Rhodes acknowledges that the trial court is not obligated to hold an evidentiary hearing on
a motion for new trial and that it has the authority to consider that motion solely on the basis of
affidavits. See TEX . R. APP . P. 21.7. But, Rhodes contends that the trial court’s decision to rely
solely on affidavits denied him constitutional due process because that decision was not made until
shortly before the trial court lost jurisdiction and because the trial court considered an affidavit filed
by the State on the last day of its jurisdiction.
          The Fourteenth Amendment of the United States Constitution forbids deprivation of life,
liberty, or property by the State without due process of law. U.S. CONST . amend. XIV. The Texas
Constitution also requires due course of law. TEX . CONST . art. I, § 19. At a minimum, due course


    1
      Rhodes attached several affidavits to his objection from friends and family members corroborating his ineffective assistance
allegations.

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requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.
Reed v. State, 269 S.W.3d 619, 624 (Tex. App.—San Antonio 2008, no pet.).
        Courts utilize the three-part balancing test first announced in Mathews v. Eldridge, 424 U.S.
319 (1976), to determine whether procedural due process has been violated. Univ. of Tex. Med. Sch.
at Houston v. Than, 901 S.W.2d 926, 930 (Tex. 1995). The factors to be balanced are:
        (1)     the private interest that will be affected by the official action;

        (2)     the risk of an erroneous deprivation of such interest through the procedures
                used, and the probable value, if any, of additional or substitute procedural
                safeguards; and

        (3)     the government’s interest, including the function involved and the fiscal and
                administrative burdens that the additional or substitute procedural
                requirement would entail.

Id. Rhodes’s challenge focuses on the second and third factors, contending that he was entitled to
more notice that no hearing would be held and that he was entitled to additional opportunity to rebut
his trial counsel’s affidavit.
        As to Rhodes’s first contention, he was on notice that the trial court had the authority to
conduct an evidentiary hearing or rule strictly based upon affidavits and that the trial court’s deadline
for ruling was January 22. See TEX . R. APP . P. 21.7, 21.8(a). The trial court was not required to give
Rhodes greater notice of its decision to not hold an evidentiary hearing. Rhodes had sufficient
opportunity to marshal affidavits in support of the contentions he made in his motion for new trial,
was on notice that affidavits might be the only evidence considered by the court, and knew that those
affidavits were needed no later than January 22.
        Nor were Rhodes’s due process rights violated by his trial counsel’s affidavit. In this regard,
it is important to note that the affidavit was in response to Rhodes’s allegations and that it was not
an affirmative claim for relief. It is also noteworthy that, even though the affidavit itself was filed
on January 22, Rhodes was given an unsworn version of that testimony on January 17 and that he
was able to marshal several affidavits controverting his trial counsel’s statements. The disputed
issues raised by the opposing affidavits largely concerned the conduct of Rhodes’s defense. The trial
court was well-positioned to address that conflict having just presided over Rhodes’s trial. Finally,


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the trial court’s decision to proceed solely on affidavits does not foreclose Rhodes’s ability to pursue
his ineffective assistance of counsel claim further through post-conviction procedures. The trial
court did not violate Rhodes’s due process rights. Issues Two and Three are overruled.
                                V. Ineffective Assistance of Counsel
       Rhodes contends that his trial counsel was constitutionally ineffective by not objecting to
prejudicial outcry hearsay, by misrepresenting his legal background, by misrepresenting that it was
illegal for him to contact any of the State’s witnesses prior to trial, and by misrepresenting his
pretrial investigation. To determine if trial counsel rendered ineffective assistance, we must first
determine whether Rhodes has shown that counsel’s representation fell below an objective standard
of reasonableness and, if so, then determine whether there is a reasonable probability that the result
would have been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668 (1984).
We must indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance, and Rhodes must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813
S.W.2d 503, 508-09 (Tex. Crim. App. 1991). An allegation of ineffective assistance must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
       A trial court’s ruling denying a motion for new trial is typically reviewed under an abuse of
discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). However,
Rhodes’s allegations involve mixed questions of law and fact. We must afford almost total
deference to a trial court’s determination of the historical facts and of mixed questions of law and
fact that turn on the credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997).
       Rhodes’s allegations that his trial counsel was ineffective because of misrepresentations
concerning his background, pretrial investigation, and the rules for contacting witnesses all involve
disputed fact issues. The trial court did not abuse its discretion by finding trial counsel’s affidavit
testimony more credible than the affidavits filed by Rhodes.
       Rhodes also complains that trial counsel was constitutionally ineffective because he did not
object to hearsay testimony. Rhodes does not identify the specific testimony but refers us to twenty


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pages of the record. His complaint has not been preserved. See TEX . R. APP . P. 38.1(i). We have,
however, reviewed the record. R.K.’s ex-boyfriend and mother were asked about statements R.K.
made to them. Rhodes’s trial counsel elicited some hearsay testimony during his cross-examination
of R.K.’s ex-boyfriend. But by doing so, counsel established that R.K.’s story became bigger with
time and that the ex-boyfriend threatened to leave R.K. unless she came forward with her allegation.
This was an appropriate trial strategy because it undermined both R.K.’s testimony and the ex-
boyfriend’s testimony. The remainder of the testimony contains nothing significant that R.K. did
not testify to herself. Thus, there was no harm. Issue Four is overruled.
                                           VI. Holding
         The judgment of the trial court is affirmed.




                                                             RICK STRANGE
                                                             JUSTICE


October 29, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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