                                  NO. 12-18-00179-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 TERESA JANE MATTESON,                            §      APPEAL FROM THE 294TH
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      VAN ZANDT COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Teresa Jane Matteson appeals her conviction for continuous sexual abuse of a child. In
one issue, she argues that she received ineffective assistance of counsel. We affirm.


                                         BACKGROUND
       Appellant was the custodial guardian of the child victim in this case.           The Texas
Department of Family and Protective Services (the Department) placed the victim with Appellant
when he was less than a year old. At the time of the placement, the Department believed Appellant
was the victim’s paternal grandmother.
       In June 2015, the Department received a report that Appellant was neglecting the victim.
Jennifer Smith, a Department investigator, attempted to locate Appellant and the victim for two
months with no success. After learning that the victim missed a doctor’s appointment and did not
receive his medication, Smith obtained a court order to remove the victim from Appellant’s care.
Still unable to locate the victim, Smith contacted the news media. An alert publishing a photograph
of the victim and requesting the public’s assistance in locating him was released. On September
4, Appellant brought the victim into the Department’s custody, and he was removed from
Appellant’s care. Appellant was required to participate in a family service plan to determine the
victim’s future placement.
       Subsequently, the victim’s mother told the Department that the individual believed to be
the victim’s biological father was not his father; thus, Appellant was not the victim’s biological
grandmother. The Department contacted and verified the biological father’s identity, and later
determined that the victim should be placed with the father. Thereafter, when discussing the
scheduling of a “goodbye visit” with Appellant, the victim told Nancy Harris, a Department
caseworker, that Appellant sexually abused him. The victim was taken to the children’s advocacy
center and interviewed by Patty Flowers, a trained forensic interviewer. During the interview with
Flowers, the victim described being sexually assaulted multiple times by Appellant in various
locations throughout Van Zandt County, Texas.
       Appellant was arrested and charged by indictment with continuous sexual abuse of a child.
She entered a plea of “not guilty” and a jury trial followed. At trial, the State asked that the victim
be allowed to testify by closed circuit television. Initially, Appellant’s trial counsel objected, but
after the trial court questioned the victim outside the presence of the jury, Appellant’s counsel
agreed to allow the victim to testify by closed circuit television.
       The victim testified that he lived with Appellant, who he believed was his grandmother,
prior to being removed by the Department. He testified that Appellant insisted he and Appellant
sleep nude together in her bed. He testified that when he was five or six Appellant began making
him engage in sexual activity with her. Specifically, he testified that Appellant touched his sexual
organ and buttocks, made him insert his sexual organ into Appellant’s sexual organ, and made him
touch her sexual organ and anus with his hand. The victim testified that Appellant made him
perform these acts almost daily.
       In addition to the victim’s testimony, the State called Smith and Harris, who testified about
their involvement prior to the victim’s outcry. The State called Flowers and admitted the victim’s
forensic interview and his written statements made during the interview into evidence. The State
called William Crawford, an investigator with the Van Zandt County District Attorney’s Office,
and through Crawford, admitted various notes that Appellant sent to the victim while he was in
the Department’s custody.
       Appellant called two witnesses: the victim’s mother’s close friend, Brianne Rogerson, and
the victim’s aunt, Felicia Malone. Both women testified that the victim had a bad reputation for
truthfulness and lied frequently. Both also testified that they loved the victim and had no
significant relationship with Appellant.



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       Ultimately, the jury found Appellant “guilty” and the court sentenced her to life in prison.
This appeal followed.


                             INEFFECTIVE ASSISTANCE OF COUNSEL
       In one issue, Appellant complains that her trial counsel’s performance fell below an
objective standard of reasonableness and there is a reasonable probability that the result would
have been different had her trial counsel performed adequately.
Standard of Review and Applicable Law
       Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The
first step requires the appellant to demonstrate that trial counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms. See Id., 466 U.S. at
688, 104 S. Ct. at 2065. The second step requires the appellant to prove that trial counsel’s
deficient performance prejudiced his defense. Id., 466 U.S. at 692, 104 S. Ct. at 2067.
       To satisfy the first step, the appellant must identify the acts or omissions of counsel alleged
to be ineffective assistance and affirmatively prove that they fell below the professional norm of
reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), abrogated
on other grounds by Mosley v. State, 985 S.W.2d 249 (Tex. Crim. App. 1996). The reviewing
court will not find ineffectiveness by isolating any portion of trial counsel’s representation, but
will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695,
104 S. Ct. at 2069.
       In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably professional
and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this
presumption by presenting evidence illustrating why his trial counsel did what he did. See id.
Appellant cannot meet this burden if the record does not affirmatively support the claim. See
Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal
to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841
S.W.2d 928, 932 (Tex. App.—Corpus Christi 1992, pet. ref’d, untimely filed) (inadequate record
to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App.—



                                                 3
Amarillo 1998, pet. ref’d) (inadequate record for ineffective assistance claim, citing numerous
other cases with inadequate records to support ineffective assistance claim). A record that
specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.]
1994, pet. ref’d).
        Appellant’s burden on appeal is well established. See Saenzpardo v. State, No. 05-03-
01518-CR, 2005 WL 941339, at *1 (Tex. App.—Dallas Apr. 25, 2005, no pet.) (op., not designated
for publication). Before being condemned as unprofessional and incompetent, defense counsel
should be given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828,
836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance
claim must usually be denied as speculative, and cannot be built upon retrospective speculation.
Id. at 835.
Analysis
        Appellant argues that her counsel was ineffective because he failed to (1) request notice of
bad acts and object to the admission of testimony that Appellant failed drug tests during the
Department’s case; (2) object to the admission of written statements the victim made during the
forensic interview; (3) object to the admission of the videotaped forensic interview of the victim;
and (4) object to the victim testifying by closed circuit television.
        However, the record before this Court is largely silent about trial counsel’s defensive
strategy or the reasoning for his actions during the trial. Generally, a silent record cannot defeat
the strong presumption that counsel was effective. See Garza v. State, 213 S.W.3d 338, 348 (Tex.
Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 813-24 (Tex. Crim. App. 1999); but see
Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (appellate court should not find
deficient performance unless challenged conduct “so outrageous that no competent attorney would
have engaged in it” from an undeveloped record); Andrews v. State, 159 S.W.3d 98, 102-03 (Tex.
Crim. App. 2005) (reversing conviction “in a rare case” on basis of ineffective assistance of
counsel).
        In Andrews, the prosecutor filed a motion to cumulate the appellant’s sentences in three
counts of sexual assault and one count of indecency with a child. 159 S.W.3d at 100. Thereafter,
the prosecutor told the jury in closing argument that the sentences the jury assessed would run
concurrently. Id. Trial counsel made no objection to the prosecutor’s argument, despite it being



                                                  4
a misstatement of the law. Id. The trial court granted the State’s motion to cumulate the
appellant’s sentences, resulting in a combined prison sentence of seventy-eight years. Id. In
reversing the appellant’s conviction, the court reasoned that the prosecutor’s argument left the jury
with the false impression that the appellant’s sentences could not be ordered to be served
cumulatively, and that appellant would serve no more than twenty years for all four counts. Id. at
103. Therefore, the court held, that under the “extremely unusual circumstance of [the] case,” the
record contained all of the necessary information it needed to conclude that there could be “no
reasonable trial strategy for failing to object” to the prosecutor’s misstatement of the law. Id.
       Appellant’s case is unlike the unusual circumstances found in Andrews, because counsel’s
reasons in Andrews were unnecessary to resolve the ineffective assistance of counsel claim. See
Berry v. State, No. 05-04-01161-CR, 2005 WL 1515512, at *3 (Tex. App.—Dallas June 28, 2005,
no pet.) (op.; not designated for publication). Counsel’s failure to object to a misstatement of the
law, which is unquestionably detrimental to one’s client, when the harm is so clearly presented on
appeal is quite unlike counsel’s decision not to object to testimony or evidence as a matter of trial
strategy. See Lopez v. State, 343 S.W.3d 137, 143-44 (Tex. Crim. App. 2011) (appellant failed to
show counsel was ineffective in failing to object to three outcry witnesses who gave similar
testimony because record was silent as to counsel’s reasons for doing so); Ingham v. State, 679
S.W.2d 503, 509 (Tex. Crim. App. 1984) (isolated failure to object to certain procedural mistakes
or improper evidence does not constitute ineffective assistance of counsel); Melonson v. State,
942 S.W.2d 777, 782 (Tex. App.—Beaumont 1997, no pet.) (appellant failed to provide required
authority in support of argument that objections would have been meritorious); Gilbert v. State,
No.14-02-00727-CR, 2003 WL 22176625, at *3 (Tex. App.—Houston [14th Dist.] Sept. 23, 2003,
no pet.) (mem. op., not designated for publication) (assuming arguendo that extraneous offense
evidence was inadmissible, trial counsel’s failure to object not ineffective assistance in absence of
any evidence of trial counsel’s strategy); see also, e.g., Walker v. State, No. 12-13-00076-CR,
2014 WL 357193, at *2 (Tex. App.—Tyler Jan. 31, 2014, pet. ref’d) (mem. op., not designated for
publication) (failure to object to hearsay not ineffective assistance of counsel because counsel’s
reasons not demonstrated by record).
       Having reviewed the record in the instant case, we conclude that the facts before us are
distinguishable from the facts in Andrews and Appellant’s trial counsel’s alleged deficient conduct
is not “so outrageous that no competent attorney would have engaged in it.” See Menefield, 363



                                                  5
S.W.3d at 593. We hold that the record before us does not contain all of the information needed
for us to conclude that there could be no reasonable trial strategy for Appellant’s trial counsel’s
alleged unprofessional acts. See Bone, 77 S.W.3d at 835. Therefore, we hold that Appellant has
not met her burden to satisfy the first prong of Strickland as set forth above because the record
does not contain the requisite evidence for us to conclude that there could be no reasonable trial
strategy for Appellant’s trial counsel’s alleged deficient acts, and Appellant cannot overcome the
strong presumption that her counsel performed effectively. See id.; see also Jackson, 877 S.W.2d
at 771. Because we so hold, we need not consider the second prong of Strickland. See Lopez,
343 S.W.3d at 144. Appellant’s sole issue is overruled.


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

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered May 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 31, 2019


                                         NO. 12-18-00179-CR


                                   TERESA JANE MATTESON,
                                           Appellant
                                              V.
                                    THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 294th District Court
                      of Van Zandt County, Texas (Tr.Ct.No. CR16-00542)

                       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.
