                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-16-00041-CR


                                  JEROME ATTO, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 432nd District Court
                                    Tarrant County, Texas
              Trial Court No. 1365794D, Honorable Ruben Gonzalez, Jr., Presiding

                                            July 28, 2016

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        Jerome Atto appeals from three judgments under which he was thrice convicted

of aggravated sexual assault of a child.1               The sole issue before us pertains to trial

counsel’s purported ineffective assistance.2              The ineffectiveness allegedly occurred

when “. . . trial counsel failed to elicit evidence that the alleged sexual assault victim’s



        1
            The State originally indicted him under five counts of sexually assaulting a child. The jury
acquitted appellant on two of those counts.
         2
           Because the appeal was transferred to this court from the Second Court of Appeals, we apply
the latter’s precedent where available should no controlling precedent from a higher court exist. See TEX.
R. APP. P. 41.3.
mother [Mother] and her boyfriend had each specifically admitted to a testifying witness

of a plan to put Appellant in jail.” Though a motion for new trial was filed by appellant, it

did not include the contention before us. We overrule the issue and affirm.

       The witness in question was being examined by defense counsel about

confronting the Mother. The subject of the confrontation concerned Mother's use of

appellant’s food stamp card. Mother apparently was with her boyfriend at the time.

According to the witness, Mother said that she and her boyfriend planned to have

appellant jailed so they could use the card. However, the boyfriend allegedly stated that

the plan was Mother's, not his.

       Before evidence of this "plan" could be heard by the jury, the trial court convened

a hearing outside the jury’s presence to determine if it was admissible. The State

argued that the evidence was irrelevant, improper impeachment, and hearsay.

Defense counsel explained that 1) the evidence "goes to the motive of why all this

happened," 2) evidence already appeared of record illustrating how Mother and the

victim were reaping the benefits of appellant's largesse by living in his abode rent free,

and 3) testimony about the use of the food stamp card further illustrated their abuse of

his beneficence. In other words, counsel was attempting to both impeach Mother (who

previously testified against him) and illustrate her motive for falsely accusing him of

assaulting her daughter. The motive apparently involved Mother's desire to contrive a

way to enjoy that provided by appellant but without his presence or interference. This

led the trial court to ask about the specific testimony defense counsel sought to admit.

Counsel replied that he merely desired to admit the witness's comments about Mother

using appellant’s food stamp card. To that he added, “I would like to get into other



                                             2
things, but I know that's hearsay, so. . . .” Whether the “other things” included the

supposed "plan" to have appellant jailed went unsaid. This led the trial court to state: “I

just want to make sure we're clear on that” and “[t]hat testimony [regarding Mother’s use

of appellant’s food stamp card] will be permitted. Beyond that, however, you're not to

mention anything else. Do you understand?” (Emphasis added).

      Despite having been permitted to impeach Mother and use other evidence to

develop her purported motive for falsely accusing appellant of assaulting her child,

defense counsel should have also asked about the supposed "plan" to have appellant

jailed, according to appellant. In effect, the latter argues that his trial attorney was

deficient because he opted to comply with the restrictions imposed by the trial court

when examining the witness.

      Irrespective of whether defense counsel was mistaken when indicating that the

"other things" he would have liked to develop were "hearsay," the trial court prohibited

him from delving into them. Heeding a trial court’s directive falls within the realm of

reasonable trial strategy. See Dodds v. State, No. 13-13-00288-CR, 2014 Tex. App.

LEXIS 12677, at *21 (Tex. App.—Corpus Christi November 25, 2014, no pet.)(mem.op.,

not designated for publication)(stating that “[t]rial counsel's decision to not elicit

testimony or request to elicit testimony that the trial court had previously ruled

inadmissible fell within the wide range of reasonable professional assistance”). Even if

the unknown “other things” that defense counsel may have wanted to broach were

admissible, as suggested by appellant, defense counsel was ordered by the trial court

not to stray from the limited path afforded him.      We refuse to categorize defense

counsel’s performance as deficient because he chose not to risk the trial court's



                                            3
response by ignoring its instruction. Indeed, one need not wonder much about the tenor

of that response given the court asking counsel "do you understand" after limiting the

scope of his examination.

       We affirm the judgments.3



                                                                       Brian Quinn
                                                                       Chief Justice


Do not publish.




       3
          Having previously ordered that the three judgments be severed into three separate appeals, we
now vacate that order and consolidate the three judgments into this one appeal assigned cause number
07-16-00041-CR. We do this because the Second Court of Appeals had only assigned one cause number
to the appeal when transferring it.

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