                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-11-00296-CR

RUSSELL OLIN BEARD,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2010-513-C2


                         MEMORANDUM OPINION


      Russell Olin Beard was indicted on four counts of sexual assault of a child. The

jury convicted Beard on all four counts, found the enhancement paragraphs to be true,

and assessed punishment at confinement for life on each count. The trial court ordered

the sentences to run consecutively. We modify the trial court’s judgments and affirm

as modified.
                                     Background Facts

        There is no challenge to the sufficiency of the evidence. M.E. testified at trial that

she met Beard when she was fifteen years-old through his daughter, Vanessa. Vanessa

told M.E. that her dad wanted to get to know M.E. M.E. testified that she and Beard

began having sex and that he gave her drugs, clothes, and money. M.E. stated that she

and Beard had sex multiple times.

        Beard testified at trial that he first met M.E. when she went with his family to

watch fireworks. He stated that M.E. stayed the night at his house one time and that

she went to Wal Mart with his family on one occasion. Beard denied having sex with

M.E.; however, he admitted smoking marijuana with her.

                                 Admission of Testimony

        In his first issue, Beard complains that the trial court erred in admitting the

testimony of Investigator Adbon Rodriguez and Detective Brent Belcher. We review a

trial court's decision to admit or exclude evidence for an abuse of discretion. McDonald

v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). "Under an abuse of discretion

standard, an appellate court should not disturb the trial court's decision if the ruling

was within the zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367

(Tex. Crim. App. 2008).

        Investigator Rodriguez testified that he was investigating another crime in which

M.E. was the victim. That crime also involved a sexual offense. During his interview of

M.E., Investigator Rodriguez asked if she had had sex with anyone else. The State

asked the investigator if M.E. gave him the name of another person. Beard’s attorney

Beard v. State                                                                          Page 2
objected based upon hearsay, and the State responded that it was asking only for the

name to show how the investigation began.            The Court allowed the question.

Investigator Rodriguez testified that M.E. told him that she had sex with Beard.

Investigator Rodriguez stated that M.E. provided details about the incident with Beard

and that he turned over the information to the Waco Police Department.

        The State asked Investigator Rodriguez if M.E. seemed to be vindictive and

attempting to get someone in trouble. Investigator Rodriguez stated that she did not.

The trial court overruled Beard’s objection to the question.

        The State then called Detective Belcher to testify. The State asked Detective

Belcher how he came to investigate the case involving M.E. Detective Belcher stated

that he received information from Investigator Rodriguez that M.E. said she had sex

with Beard. Beard’s attorney objected to hearsay, and the State responded that it was

not offered for the truth but as information acted on. The trial court overruled the

objection, and Detective Belcher testified that he received information that Beard paid

M.E. $100 for sex.

        Detective Belcher interviewed M.E., and she gave him information that he was

able to corroborate concerning her involvement with Beard. Detective Belcher also

testified that he talked to Beard, and he denied having sex with M.E. Beard was later

interviewed at the District Attorney’s office. At that time, Beard stated that he had

dreamed about M.E. and that he fantasized about her. Beard further stated that M.E.

might have come into his room while he was sleeping and touched him.




Beard v. State                                                                   Page 3
        Beard argues that the testimony of Investigator Rodriguez and Detective Belcher

was impermissible hearsay and contained “unnecessary overly prejudicial details.”

Extra-judicial statements are not inadmissible hearsay when offered to explain how the

defendant became a suspect and not for the truth of the matter asserted. See Dinkins v.

State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Jones v. State, 843 S.W.2d 487 (Tex.

Crim. App. 1992). Moreover, M.E. testified at trial that she had sex with Beard. Any

error in admitting evidence is cured when the same evidence is admitted elsewhere

without objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); see also

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). We overrule the first issue on

appeal.

                                    Outcry Testimony

        In his second issue, Beard argues that the trial court erred in allowing Detective

Belcher to testify as an outcry witness because the trial court did not conduct a

reliability hearing, M.E. was too old for the outcry statute to apply, and the outcry did

not sufficiently describe the charged conduct. Detective Belcher testified that after

receiving the information from Investigator Rodriguez, he went to interview M.E.

because she was the victim making the “outcry” and it was important to get the facts

from her. Detective Belcher also testified that the initial “outcry” statement is “what

really happened.” Detective Belcher described M.E.’s demeanor when talking about

Beard, but did not give details about what M.E. told him. After interviewing M.E.,

Detective Belcher “gathered” that she had a sexual relationship with Beard.



Beard v. State                                                                      Page 4
          Beard contends that the trial court erred in allowing Detective Belcher to testify

as an outcry witness pursuant to TEX. CODE CRIM. PRO. ANN. art. 38.072 (West Supp.

2011).      Detective Belcher stated that he received information from Investigator

Rodriguez that M.E. said she had sex with Beard. Beard’s trial attorney objected to that

testimony as hearsay. Detective Belcher did not testify about any details M.E. told him

about the alleged offense only that he “gathered” from talking to M.E. that she had a

sexual relationship with Beard. There was no objection to that testimony. Detective

Belcher referred to M.E. making an “outcry” statement; however Detective Belcher did

not testify as an outcry witness. Moreover, Beard did not object to Detective Belcher’s

testimony about his interview with M.E. See TEX. R. APP. P. 33.1. We overrule the

second issue.

                                     Improper Bolstering

          In his third issue, Beard complains that the trial court erred in allowing the State

to improperly bolster the testimony of M.E.           Bolstering has been defined as "any

evidence the sole purpose of which is to convince the factfinder that a particular witness

or source of evidence is worthy of credit, without substantively contributing 'to make

the existence of a fact that is of consequence to the determination of the action more or

less probable than it would be without the evidence.' " Rivas v. State, 275 S.W.3d 880,

886 (Tex. Crim. App. 2009)(quoting Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App.

1993)).

          Beard first complains that Investigator Rodriguez’s testimony improperly

bolstered the testimony of M.E. The State asked Investigator Rodriguez whether M.E.

Beard v. State                                                                          Page 5
appeared to be vindictive and trying to get someone in trouble.          Beard’s attorney

objected that Investigator Rodriguez was not qualified to give that opinion. The trial

court allowed Investigator Rodriguez to testify to his observations of M.E.’s attitude,

and he stated that M.E. was not vindictive. The State then asked if he had any other

opinion about M.E.’s tone and behavior. Investigator Rodriguez responded that he

believed the information she provided was true. Beard did not object to that testimony.

         M.E. had not yet testified, and therefore, her credibility had not been impeached.

Beard complains on appeal that Investigator Rodriguez’s testimony improperly

bolstered M.E.’s credibility. Because his complaint at trial that Investigator Rodriguez

was not qualified to testify on M.E.’s motivation and attitude does not comport with his

bolstering argument raised on appeal, he has not preserved his complaint for review.

TEX. R. APP. P. 33.1; Maes v. State, 275 S.W.3d 68, 72 (Tex. App.—San Antonio 2008, no

pet.).

         Beard next complains that Detective Belcher’s testimony improperly bolstered

the credibility of M.E. The State asked Detective Belcher why it is important to get a

written statement from a victim, and he responded to get the victim’s version of what

happened without “putting words in their mouths.” Detective Belcher further stated

that the first outcry is “the correct statement on what happened” and the most reliable.

Detective Belcher also testified that he was able to corroborate information M.E.

provided to him. The State later asked Detective Belcher whether there was a motive

for M.E. to make up the allegations against Beard, and he responded that there was no

motive.

Beard v. State                                                                       Page 6
        We do not find that Detective Belcher’s testimony on the importance of getting a

written statement bolstered the credibility of M.E.        Moreover, Detective Belcher’s

testimony that he corroborated information he received from M.E. was not improper

bolstering. Beard did not object to Detective Belcher’s statement that M.E. did not have

a motive to make up the allegations and has not preserved that complaint for review.

TEX. R. APP. P. 33.1.

        Beard’s next complaint on improper bolstering concerns the testimony of Dr.

William Lee Carter. Dr. Carter first had contact with M.E. when she was thirteen years-

old based upon events unrelated to the present case. Dr. Carter became aware at that

time of allegations that M.E. was sexually abused by her uncle. During the trial of the

present case, the State asked Dr. Carter whether he found M.E.’s statements about her

uncle to be reliable. Beard’s trial counsel objected, and the trial court allowed the

question. Dr. Carter stated that “CPS uses the term ‘reason to believe’ … and that

would be the phrase I would use as well.”

        The State then asked if Dr. Carter saw any “red flags” in this case that M.E. was

making up the allegations or had an unfair motive. Beard’s trial attorney objected that

the question was outside of the bounds of Dr. Carter’s expert testimony. Dr. Carter

responded that “there’s reason to believe that her words should be taken seriously.”

Dr. Carter further stated that he is not the “trier of facts” and that he is not the one who

decides “yes or no, it did or didn’t happen.”

        A direct opinion on the truthfulness of the child, from either a lay witness or an

expert witness, is inadmissible. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App.

Beard v. State                                                                        Page 7
1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref'd). An

expert may, however, testify to behaviors and traits that might constitute indicia of

manipulation. Schutz v. State, 957 S.W.2d 52, 70 (Tex. Crim. App. 1997). Dr. Carter did

not give a direct opinion on the truthfulness of M.E., but rather stated that it was not for

him to determine if M.E. was telling the truth.

        Beard also complains that the trial court erred in admitting the testimony of

Investigator Don Marshall. Investigator Marshall testified that he had interviewed

approximately 400 to 500 sex offenders. He said that statements Beard made during the

interview were consistent with those made by other sex offenders he has interviewed.

Investigator Marshall further stated that generally when a person is telling the truth his

“story doesn’t change.” Beard specifically complains that Investigator Marshall was

allowed to testify that Beard is a sex offender and a liar. Beard did not object to

Investigator Marshall’s testimony, and he has not preserved his complaint for review.

TEX. R. APP. P. 33.1. We overrule Beard’s third issue.

                            Ineffective Assistance of Counsel

        In his fourth issue, Beard complains that he received ineffective assistance of

counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must

meet the two-pronged test established by the U.S. Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by

Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

Appellant must show that (1) counsel's representation fell below an objective standard

of reasonableness, and (2) the deficient performance prejudiced the defense. Strickland

Beard v. State                                                                        Page 8
v. Washington, 466 U.S. at 689, 104 S.Ct. 2052. Unless appellant can prove both prongs,

an appellate court must not find counsel's representation to be ineffective. Id. at 687,

104 S.Ct. 2052.

        In order to satisfy the first prong, appellant must prove, by a preponderance of

the evidence, that trial counsel's performance fell below an objective standard of

reasonableness under the prevailing professional norms. Lopez v. State, 343 S.W.3d 137,

142 (Tex. Crim. App. 2011). To prove prejudice, appellant must show that there is a

reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different. Id.

        An appellate court must make a strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance. Id. In order for an

appellate court to find that counsel was ineffective, counsel's deficiency must be

affirmatively demonstrated in the trial record; the court must not engage in

retrospective speculation. Id. "It is not sufficient that appellant show, with the benefit

of hindsight, that his counsel's actions or omissions during trial were merely of

questionable competence."     Lopez v. State, 343 S.W.2d at 142-3.    When such direct

evidence is not available, we will assume that counsel had a strategy if any reasonably

sound strategic motivation can be imagined. Lopez v. State, 343 S.W.2d at 143. In

making an assessment of effective assistance of counsel, an appellate court must review

the totality of the representation and the circumstances of each case without the benefit

of hindsight. Id.



Beard v. State                                                                      Page 9
        The Court of Criminal Appeals has stated that 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. Id. On direct appeal, the

record is usually inadequately developed and "cannot adequately reflect the failings of

trial counsel" for an appellate court "to fairly evaluate the merits of such a serious

allegation." Id. Unlike other claims rejected on direct appeal, claims of ineffective

assistance of counsel rejected due to lack of adequate information may be reconsidered

on an application for a writ of habeas corpus. Id.

        Beard argues that his trial counsel was ineffective in failing to preserve error in

the admission of evidence discussed in issues one, two, and three. Beard’s trial counsel

made several relevant objections during the testimony of Investigator Rodriguez,

Detective Belcher, and Dr. Carter.      Investigator Rodriguez and Detective Belcher’s

testimony about how they began investigating the case was not inadmissible hearsay.

Further, we found that Detective Belcher did not testify as an outcry witness. Beard

also complains that his trial counsel was ineffective in failing to object to Dr. Carter’s

testimony that Beard “groomed” M.E. for sexual purposes. Trial counsel objected to the

complained of testimony, and the objection was sustained.

        Beard denied committing the offense and presented evidence that he did not

engage in sexual activity with M.E. Beard testified at trial that he was physically unable

to engage in a sexual relationship with M.E. Beard further presented evidence that M.E.

inaccurately described physical characteristics of his body, including the location of

various tattoos, that would have been apparent to her if they had a sexual relationship.

Beard v. State                                                                      Page 10
         Beard has not shown that trial counsel’s decisions were not based upon sound

trial strategy. Beard further has not shown that any errors on the part of his trial

counsel prejudiced his defense as to undermine confidence in the outcome.               M.E.

testified at trial to the same statements she made to Investigator Rodriguez and

Detective Belcher and that she had a sexual relationship with Beard. Beard’s statements

to the police were admitted at trial where he admitted to fantasizing and dreaming

about M.E. Beard testified at trial and admitted to smoking marijuana with M.E. Beard

has not shown that he received ineffective assistance of counsel. We overrule the fourth

issue.

                                     Assessment of Fees

         In his fifth issue Beard contends that because he is indigent, the trial court erred

in assessing court-appointed attorney’s fees and court-appointed investigator fees. The

State concedes that there is insufficient evidence to support the assessment of court-

appointed attorney’s fees and investigator fees. We sustain Beard’s fifth issue.

         In his sixth issue, Beard complains that trial court erred in signing four separate

“withdrawal orders” directing the Texas Department of Criminal Justice to withdraw

funds from his inmate account. Beard contends that he could be required to pay the

costs four times. Proceedings to withdraw funds from inmate accounts are civil in

nature, not criminal. Harrell v. State, 286 S.W.3d 315 (Tex. 2009). Because this is a

criminal appeal, Beard’s complaint is not properly before this Court in this proceeding.

We overrule the sixth issue.




Beard v. State                                                                        Page 11
                                       Conclusion

        We modify the trial court’s judgments to delete the assessment of attorney’s fees

and investigator fees. As modified, the judgments are affirmed.



                                                       AL SCOGGINS
                                                       Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed February 29, 2012
Do not publish
[CRPM]




Beard v. State                                                                    Page 12
