      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00256-CR



                                 Donald John Noland, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 63702, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant, Donald John Noland, was charged with aggravated sexual assault of a

child younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021 (West Supp. 2011).

Noland waived his right to a jury trial and entered a plea of not guilty. The trial court found Noland

guilty and assessed punishment at forty years’ imprisonment. Noland appeals, asserting that he was

denied effective assistance of counsel. We affirm the trial court’s judgment.


                                          BACKGROUND

                The victim in this case, K.B., is Noland’s stepdaughter.1 In the spring of 2008, K.B.

was twelve years old and lived with her mother, Shawna Noland; her brother; her stepfather, Noland;

and Noland’s mother and nephew.2 One day that spring, K.B. confided to two friends at school that



       1
           The facts recited herein are taken from the testimony and exhibits presented at trial.
       2
          Because K.B.’s mother, Shawna Noland, shares the same surname as the appellant, we will
refer to her by her first name for clarity.
Noland was having sex with her every weekend when her mother was away. K.B.’s friends decided

to notify the school counselor, Kim Vaughn, about what K.B. had said. Vaughn spoke with K.B.

and then made a report to Child Protective Services (CPS). After interviewing K.B. and her parents

and visiting their home, a CPS investigator contacted the Temple Police Department. A sexual assault

nurse examiner examined K.B., and a staff member at the Child Advocacy Center (CAC) interviewed

K.B. K.B. was subsequently removed from the home, and on September 24, 2008, Noland was

indicted for aggravated sexual assault of a child younger than fourteen.

               At the bench trial, the State presented testimony as to K.B.’s outcry and the resulting

investigation. CPS investigator Jana Jordan testified about her interview with K.B., stating that K.B.

reported multiple instances of sexual abuse by Noland. Jordan also testified that she interviewed

K.B.’s mother, Shawna, who did not seem to believe her daughter about the abuse. Jordan then

recalled interviewing Noland. She testified that Noland denied any sexual intercourse with K.B. but

did describe an incident when K.B. demanded to try on some lingerie Noland had purchased for his

wife. According to Jordan, Noland said he permitted K.B. to try on the lingerie. Noland said he sent

K.B. into another room, but she came back wearing the lingerie. However, Noland said he could not

see K.B.’s body underneath the lingerie because it was not “see-through.” Jordan testified that

Noland admitted telling K.B. not to tell anyone about the lingerie or he might be arrested.

               Jordan also testified about visiting K.B.’s home. She stated that she found some

lingerie made of black netting, which did not match Noland’s description of the lingerie tried on by

K.B., but also did not look large enough to fit Shawna. Jordan said that K.B. identified the lingerie

as “a sex outfit that her stepfather had bought for her” and also showed Jordan a vibrator that she



                                                  2
claimed Noland had given her. Photos of the items Jordan found were admitted into evidence. The

lingerie and a bottle of lubricant, which were collected by the police, were also admitted. The State

asked Jordan what findings CPS made in closing its case on Noland. Jordan replied that Noland’s

case was classified as “reason to believe,” which meant that CPS “validated him for sexual abuse.”

               K.B.’s friend, J.G., was then called by the State. She testified that K.B. was crying

when she told her friends about Noland having sex with her. J.G. recalled alerting the school counselor

to K.B.’s claims. The counselor, Vaughn, also testified, describing the conversation she had with

K.B. after being approached by K.B.’s friends.3 According to Vaughn, K.B. told her that on weekends

when her mother would go out, K.B. would spend time in her mother’s bedroom on the computer,

and her stepfather would come in and have sex with her. Further, K.B. said that Noland threatened

to shoot himself if she told anyone about these incidents.

               The State then called K.B. to testify. K.B. stated that, in October of her seventh-grade

year, she had to go to a psychiatric hospital because she was cutting herself. K.B. explained that she

had been depressed because her mother was inattentive and that she was also in the hospital for

acting out sexually, such as showing her breasts to boys at school. K.B. testified that she had told

hospital staff she heard voices telling her to touch herself. However, she admitted that this was a lie

she had told to get attention.

               After leaving the hospital, K.B. gave an interview at the CAC about an event that

occurred before her hospitalization. According to K.B., while sleeping over at a friend’s house, K.B.


       3
         Vaughn was the designated “outcry witness” called by the State. See Tex. Code Crim.
Proc. Ann. § 38.072 (West 2005). At the outset of Vaughn’s testimony, Noland’s attorney stated that
he would object to hearsay if any additional “outcry” witnesses were called. The State indicated that
Vaughn was the only one.

                                                  3
followed the friend’s older brother to his room and had sex with him. She claimed this happened

in June 2006, when she was eleven years old and the boy was fifteen or sixteen. K.B. testified that

Noland had learned about this event and therefore knew that she “wasn’t a virgin.”

                K.B. then testified that, sometime after she left the hospital but before she told the

CAC about her friend’s brother, Noland began having sex with her. K.B. claimed that, while she

was using the family computer, Noland would come into the room drinking alcohol and would offer

her some. After she would drink the alcohol, K.B. testified, Noland would touch K.B.’s breasts over

her clothing. Later, Noland would touch K.B.’s “vagina area and [her] butt” with “his dick.” K.B.

added, “The vagina area was with his tongue, too.” She also testified that Noland had put his penis

“in [her] mouth and in [her] butt,” which “hurt.” K.B. testified that Noland applied “some type

of lotion,” which was a yellow-colored gel from a small container, onto his penis. She recalled

showing the container to the detective who visited her house.

                K.B. stated that the abuse began before Christmas 2007, when Noland’s mother

and nephew moved into the home, and continued while they lived there. K.B. testified that Noland

threatened to kill himself if she told anyone what was happening, which was why she did not initially

tell her therapist or anyone at the CAC. She stated that the last time Noland had sex with her was

the weekend before she returned to the CAC to talk about him.

                K.B. also testified as to various items that Noland gave her. She described one piece

of lingerie that was black and full of holes. K.B. denied asking to try this lingerie on, stating instead

that Noland asked her to try it on and she agreed. K.B. said Noland took photos of her wearing it.

When asked about the vibrator photographed by CPS, K.B. admitted that Noland did not give it to



                                                   4
her. She testified that she took that vibrator from Noland’s closet. However, K.B. stated that there

was another vibrator, originally her mother’s, that Noland did give to her.

                On cross-examination, K.B. admitted that she had told lies in the past. She admitted

to telling CPS that Noland began abusing her between Christmas 2007 and spring break of 2008,

whereas she had just testified that the abuse began before Christmas 2007. K.B. also admitted that

she previously gave the prosecutor a different date—sometime around her birthday, May 2—as the

last instance of the abuse. K.B. admitted to telling several lies in the psychiatric hospital, including

that she heard voices, had visions when she looked in the mirror, belonged to a gang, and drank pig’s

blood. However, on redirect examination, K.B. testified that she was merely confused about the

dates when she was abused and had not been purposely untruthful in that regard.

                Next, the State questioned sexual assault nurse examiner Debra Kleypas. After

stating her qualifications, Kleypas testified that the history she took from K.B. indicated that K.B.

was sexually abused by her stepfather. However, the examination revealed no physical evidence of

abuse. There was no injury to K.B., which Kleypas testified was probably because K.B. had already

undergone puberty, causing changes to her genitals that make injury from sexual intercourse

less likely. In addition, because several days had passed since the last alleged assault and K.B. was

menstruating heavily, Kleypas declined to administer a DNA swab.4

                The State also presented testimony from Gary Richards, a detective at the Temple

Police Department. Richards testified that, in his experience working with children victimized by


       4
         Kleypas testified that she had determined that a swab would not be effective. Specifically,
she explained that menstruation carries any DNA evidence outside of a woman’s body, leaving none
for a swab to detect.

                                                   5
physical or sexual abuse, he had seen many exhibit behaviors like physical violence, sexually

acting out, and depression. Richards also described accompanying CPS to Noland’s house to collect

evidence in this case. He agreed that Noland’s wife appeared too heavy to wear the black lingerie

found by CPS. However, he noted that he had visited the store in Killeen where it was purchased

and had learned that it was the largest size the store could offer without placing a special order.

               Lastly, Richards recalled conducting a voluntary interview with Noland and asking

about the lingerie. According to Richards, Noland claimed that K.B. kept asking to try it on until

he let her. However, Noland admitted that the lingerie had nothing over the breast area and that K.B.

came out wearing it with nothing underneath. Noland said he told K.B., “Okay, that looks nice[.]

Now go take it off.” Richards said that Noland also admitted having a conversation with K.B. about

gagging during oral sex and about shaving the genital area. However, on cross-examination, Richards

agreed that Noland denied any sexual intercourse with K.B. The defense then showed Richards a

photo of Shawna wearing lingerie similar to that in evidence over her clothes. Richards admitted

that, although it was tight, Shawna did fit into the lingerie.

               Finally, the State called Jerry Upshaw, the grandfather who was caring for K.B. in

Florida since her removal from the Noland home. Upshaw testified that K.B. had become a “fine

child” who earned A’s and B’s in her classes and played on the school basketball team. Upshaw

stated that K.B. had been in counseling until recently but had not been on any medication since

moving to Florida. When asked if K.B. had problems with boys, Upshaw stated that “most teenagers

are boy crazy” and K.B. “just seemed to be a little excessive.” He added that K.B. had no problems

with alcohol or drugs that he knew of. According to Upshaw, K.B. sometimes told lies or fibs, but



                                                   6
usually with regard to “internet use that she wasn’t supposed to do . . . . We had issues where she

would stay up late at night and get on the internet when she shouldn’t have been.” Overall, Upshaw

said, K.B. was “a normal teenager.”

               For the defense, K.B.’s mother Shawna was called to testify. She disputed some of

K.B.’s statements. For instance, Shawna testified that the bottle of lubricant in evidence belonged

to her and Noland and had been empty for years. “We don’t throw away our bottles right offhand,”

she explained. “We [wait] until we can actually throw them away when there’s not kids around.”

Shawna also claimed that she went out with friends just once or twice each month, rather than every

weekend, as suggested by K.B. Shawna also noted that K.B. first made her outcry shortly after

Shawna and Noland, frustrated with K.B.’s grades, canceled a vacation to Florida that K.B. had been

anticipating. Shawna testified that she believed K.B. was lying about being abused by Noland.

               After the close of evidence, the trial court found Noland guilty. The State announced

its intent to seek enhanced punishment based on a prior conviction; Noland pleaded not true to the

enhancement.5 After a punishment hearing, the trial court found the enhancement paragraph not true.

The court then sentenced Noland to forty years’ imprisonment and ordered him to pay court costs.

               Subsequently, Noland’s trial counsel withdrew from the case and Noland obtained

new counsel, who filed a motion for new trial. The motion alleged that Noland had received

ineffective assistance of counsel at trial. At a hearing on the motion, Noland called his employer,

Kevin Harmon, who testified that he and several other individuals were prepared to testify at


       5
         The parties stipulated that Noland had received probation for a felony charge of corrupting
a minor in Ohio in 1996. Noland’s attorney argued that the Ohio probation did not constitute a final
conviction under Texas law and therefore could not be used to enhance punishment in Texas.

                                                 7
Noland’s punishment hearing but were never interviewed or called to the stand. Noland also called

his trial counsel to testify about his services, and trial counsel testified extensively as to various

aspects of the trial and punishment. For instance, trial counsel explained why he did not object to

certain testimony, how he used K.B.’s medical records, and his strategy at the punishment hearing.

Finally, Noland submitted several affidavits concerning trial counsel’s work on the case.

               Following the hearing, the trial court denied Noland’s motion. Noland now appeals,

claiming that defense counsel provided ineffective assistance in numerous respects.


                                    STANDARD OF REVIEW

               We review the denial of a motion for new trial for an abuse of discretion. Charles v.

State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Accordingly, when analyzing the trial court’s

decision to deny a new trial based on ineffective assistance of counsel, we view the relevant legal

standards through the prism of an abuse-of-discretion standard. See Ramirez v. State, 301 S.W.3d 410,

415 (Tex. App.—Austin 2009, no pet.). We do not substitute our judgment for that of the trial court;

rather, we decide whether the trial court’s decision was arbitrary or unreasonable. Charles, 146 S.W.3d

at 208. We must view the evidence in the light most favorable to the trial court’s ruling and presume

that all reasonable factual findings that could have been made against the losing party were so made.

Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable

view of the record could support the trial court’s ruling. Id.

               To prevail on a claim of ineffective assistance of counsel, a defendant must show by

a preponderance of the evidence that (1) counsel’s representation fell below an objective standard

of reasonableness under the prevailing professional norms and (2) the deficient performance

                                                  8
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986). An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong. Garcia v. State, 57 S.W.3d 436,

440 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at 697). With regard to the first prong of

the analysis, we consider all of the circumstances with a “strong presumption that counsel’s

performance fell within the wide range of reasonably professional assistance.” Robertson v. State,

187 S.W.3d 475, 484 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689). A defendant must

show that no reasonable trial strategy could justify counsel’s conduct. Strickland, 466 U.S. at 689;

State v. Bounhiza, 294 S.W.3d 780, 783 (Tex. App.—Austin 2009, no pet.).

               To prove prejudice, a defendant 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. at 694. “It is not enough for the defendant to show that the errors had

some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, he must show that

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

doubt respecting guilt.” Id. at 695.

               A Strickland claim must be “firmly founded in the record, and the record must

affirmatively demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). Direct appeal is usually an inadequate vehicle for raising ineffective-

assistance claims because the record is generally underdeveloped. Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005). The record in this case, however, is more developed on direct

appeal because of the hearing held on Noland’s amended motion for new trial. The hearing featured

testimony of defense counsel and affidavits from multiple witnesses.

                                                  9
                                           DISCUSSION

               In a single point on appeal, Noland argues that defense counsel rendered ineffective

assistance of counsel. In a list of eleven “examples” of ineffective assistance, Noland essentially

complains about seven aspects of his trial counsel’s performance. Noland claims his attorney was

ineffective because he: (1) failed to object to testimony, including testimony from the designated

outcry witness in the case, that was inadmissible as hearsay; (2) failed to obtain disciplinary records

of the complaining witness; (3) failed to object to testimony by a CPS investigator expressing an

opinion on the ultimate question; (4) presented the court with medical records prejudicial to Noland

instead of presenting, arguing, or cross-examining witnesses using beneficial medical records;

(5) failed to investigate a prior allegation by the complaining witness that would have discredited

her; (6) provided erroneous advice regarding the need for mitigation evidence before the court ruled

on an enhancement count at punishment; and (7) failed to interview potential defense witnesses or

present their testimony at punishment. We will examine each of these contentions in turn.


Hearsay testimony

               First, we consider Noland’s argument that he received ineffective assistance because

his trial counsel failed to object to testimony presented by Vaughn, the designated outcry witness,

as well as CPS investigator, Jordan, and K.B.’s friend, J.G. Noland argues that counsel should

have objected to Vaughn’s testimony concerning statements made by K.B. as hearsay because

the State failed to meet the statutory prerequisites for admissibility of outcry witness testimony. See

Tex. Code Crim. Proc. Ann. art. 38.072 (West 2005). Likewise, Noland argues that counsel should

have objected to testimony from Jordan and J.G. about statements made by K.B as hearsay. In

                                                  10
response, the State asserts, and we agree, that Noland has failed to rebut the strong presumption

that counsel’s performance fell within the wide range of reasonably professional assistance. See

Robertson, 187 S.W.3d at 483.

                As a general rule, hearsay is not admissible unless it falls within an exception

provided by statute or the rules of evidence. See Tex. R. Evid. 802. Article 38.072 of the code of

criminal procedure creates a hearsay exception for certain statements made by a child victim of

certain sexual offenses to the first person over the age of eighteen. See Tex. Code Crim. Proc. Ann.

art. 38.072. However, for such “outcry witness” testimony to be admissible, the State must notify

the defendant of its intent to offer the outcry statement in advance of trial by following the

notification requirements of article 38.072. Id. art. 38.072(2)(b)(1). Further, a trial court must find,

in a hearing conducted outside the presence of the jury, that the statement is reliable based on time,

content, and circumstances of the statement. Id. art. 38.072(2)(b)(2).

                In this case, the State designated Vaughn as the outcry witness, and Noland does

not contend that the State in any way failed to properly notify him of its intention to present Vaughn

as an outcry witness under article 38.072. See Tex. Code Crim. Proc. Ann. art. 38.072(2)(b)(1).

Rather, Noland contends that Vaughn’s testimony concerning K.B.’s outcry is inadmissible hearsay

because the court failed to conduct a hearing and find that the outcry statement is reliable. However,

to successfully assert that trial counsel’s failure to object to Vaughn’s testimony as hearsay amounted

to ineffective assistance, Noland must show that the trial judge would have committed error in

overruling the hearsay objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

                There is nothing in the record that indicates that the court conducted a hearing or

made a finding that the outcry statement made to Vaughn is reliable; further, nothing in the record

                                                  11
indicates that either party requested such a hearing. However, if trial counsel had objected to

Vaughn’s testimony as hearsay on the ground that the court had failed to conduct an article 38.072

hearing, it is likely that the court would have then conducted the hearing, to the extent necessary,

to determine the reliability of the outcry statement. See Sanchez v. State, 354 S.W.3d 476, 488

(Tex Crim. App. 2011) (“Trial courts have great discretion in how they manage their Article 38.072

hearings.”). Moreover, Noland fails to show that the court, focusing on the “time, content, and

circumstances” of the outcry statement, would have found it to be unreliable. The record before us

does not support the conclusion that, upon objection, the trial court would have committed error in

ultimately admitting Vaughn’s testimony. See Strickland, 466 U.S. at 689. Accordingly, we cannot

conclude that counsel’s failure to object to Vaughn’s testimony as hearsay was deficient.

               In addition, the record shows that despite having the opportunity at the hearing on the

motion for new trial, Noland failed to question trial counsel about his reasons for not objecting to

Vaughn’s testimony. As a result, counsel was not given an opportunity to explain his actions, and

the record is silent as to counsel’s reasoning or strategy for not objecting to Vaughn’s testimony.

See Goodspeed, 187 S.W.3d at 392 (“Trial counsel should ordinarily be given an opportunity to

explain his acts or omissions before being denounced as ineffective.”) Id. Where trial counsel’s

reasons for failing to do something do not appear in the record, the record on direct appeal is

generally inadequate to demonstrate deficient performance. Id. On the record before us, without

knowing the reasons for counsel’s decision for failing to object to Vaughn’s testimony, we cannot

conclude that trial counsel’s performance fell below an objective standard of reasonableness. Id.

(quoting Garcia v. State, 57 S.W.3d at 440) (“Absent such an opportunity, an appellate court

should not find deficient performance unless the challenged conduct ‘was so outrageous that

                                                 12
no competent attorney would have engaged in it.’”); see Lopez v. State, 343 S.W.3d 137, 143-44

(Tex. Crim. App. 2011) (holding that appellant failed to demonstrate deficiency as to trial counsel’s

decision to not request an article 38.072 hearing because “the record [was] silent as to why trial

counsel failed to object”).

                Similarly, Noland has failed to establish that no reasonable trial strategy could justify

counsel’s failure to object to the testimony of Jordan and J.G. See Strickland, 466 U.S. at 689. At

the hearing on the motion for new trial, counsel testified that he was aware that Vaughn had been

designated by the State as the outcry witness. However, according to counsel’s testimony, K.B.’s

credibility was a primary issue in the case, and he believed the statements of J.G. and Jordan

would discredit K.B. by demonstrating conflicts in her different reports of abuse. Consistent with

this strategy, counsel cross-examined K.B. with regard to different statements she had made

concerning the dates of the alleged abuses. In addition, in closing argument, counsel discussed

K.B.’s inconsistent statements, especially with regard to the dates of the alleged occurrences, and

her overall inability to tell the truth. Based on trial counsel’s testimony at the hearing, the trial court

could have reasonably concluded that a sound trial strategy supported his decision not to object to

the testimony at issue. See Strickland, 466 U.S. at 689; see also Everett v. State, No. 04-03-00709-CR,

2005 Tex. App. LEXIS 795, at *20 (Tex. App.—San Antonio Feb. 2, 2005, no pet.) (mem. op.)

(holding that ineffective assistance was not proven where counsel testified that he permitted hearsay

testimony of additional outcry witnesses in order to show inconsistencies in complainants’ statements,

even though another attorney might have pursued a different strategy). From the record before us,

we cannot conclude that counsel’s performance fell below an objective standard of reasonableness.




                                                    13
               But even if counsel’s performance was deficient, Noland fails to prove that his

defense was prejudiced as a result. See Strickland, 466 U.S. at 687, 694–95. Noland argues that the

testimony of Jordan, J.G., and Vaughn prejudiced Noland’s case because the testimony “served only

to enhance/bolster [K.B.]’s credibility—the sole issue in the case! There is a reasonable probability

that it impacted the fact finder’s verdict!” However, Noland has presented no evidence, either in his

motion for new trial or at the hearing, that counsel’s allegedly deficient performance prejudiced

his defense. See Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (explaining that

affirmative proof of prejudice is required); Bazanes v. State, 310 S.W.3d 32, 43 (Tex. App.—Fort

Worth 2010, pet. ref’d) (rejecting prejudice argument similar to Noland’s). Instead, the evidence at

trial against Noland, even apart from the testimony that Noland now complains was wrongfully

admitted, was considerable and supports the court’s finding of guilt. See Everett, 2005 Tex. App.

LEXIS 795, at *20 (“When inadmissible testimony is disregarded, if the remaining evidence is still

sufficient to support a jury finding of guilt, then the appellant has failed to show prejudice.”). For

example, the trial court heard K.B.’s account of ongoing sexual abuse by Noland. The court then

heard testimony from her grandfather, Jerry Upshaw, suggesting that K.B. was recovering from

her past psychiatric problems, had developed into a normal teenager, and could be trusted on

major issues. Conversely, the trial court heard testimony that Noland made multiple, conflicting

admissions to discussing sexual acts with K.B. and permitting her to try on lingerie. As the sole

judge of the credibility of the witnesses, the trial court could have reasonably concluded from this

evidence that the outcome of Noland’s trial would not have been different, even if counsel had

objected to the testimony of Vaughn, Jordan, and J.G.



                                                 14
               Viewing the evidence in the light most favorable to the trial court’s ruling, Noland

has failed to prove both deficiency and prejudice with respect to his claim that counsel should have

objected to the testimony of Vaughn, Jordan, and J.G. See Strickland, 466 U.S. at 668, 687.


Presentation of disciplinary records

               Noland also argues that counsel provided ineffective assistance in failing to

investigate and present K.B.’s disciplinary records from the alternative school in the Belton

Independent School District. However, Noland has not provided the records at issue, with the result

that their contents are unknown to this Court. Accordingly, we cannot evaluate whether the records

were relevant to Noland’s defense or whether any prejudicial effect resulted from their omission at

trial. See Goodspeed, 187 S.W.3d at 390 (noting that Strickland claim must be “firmly founded in

the record” and that “the record must affirmatively demonstrate” meritorious nature of claim).


Opinion testimony on the ultimate issue

               Next, we consider Noland’s argument that he received ineffective assistance because

counsel failed to object to the CPS investigator’s opinion testimony on the ultimate issue. Noland

complains that counsel should have objected when Jordan, who was not established as an expert, gave

opinion testimony that CPS found “reason to believe” Noland had sexually abused K.B. Noland

also claims this testimony “totally usurped the province of the fact finder by providing the answer

to the ultimate question.” The State contends that Jordan’s statement did not constitute an opinion

as to K.B.’s truthfulness but rather a confirmation that CPS had found grounds to remove K.B. from

her home. However, we need not determine if Jordan expressed an opinion on the ultimate issue,

because even if she had, Noland would be unable to show deficient performance in this respect.

                                                15
               Rule 701 of the Texas Rules of Evidence provides that a lay witnesses may express

opinions if they are “rationally based on the perception of the witness” and “helpful to the clear

understanding of the witness’s testimony or the determination of a fact in issue.” Tex. R. Evid. 701.

The record shows that Jordan’s testimony was rationally based on her observations while

investigating the Noland family on behalf of CPS. See Ex Parte White, 160 S.W.3d 46, 53 (Tex. Crim.

App. 2004). Further, rule 704 provides that “[t]estimony in the form of an opinion or inference

otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the

trier of fact.” Tex. R. Evid. 704; see Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992)

(“‘invades the province of the jury’ is no longer a valid objection to opinion testimony”). Thus, even

if Jordan’s statement constituted an opinion, the testimony was admissible under rule 701 and rule

704 of the rules of evidence. Counsel’s decision not to object was not even in error, much less an

instance of deficient performance. See Bradley v. State, 359 S.W.3d 912, 919 (Tex. App.—Houston

[14th Dist.] 2012, no pet.); Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.]

1986, pet. ref’d) (“Counsel's failure to object to admissible testimony does not constitute ineffective

assistance of counsel.”); see also Garcia, 57 S.W.3d at 440.


Presentation of certain medical records

               Noland further argues that counsel was ineffective in making use of K.B.’s medical

records. At trial, all of K.B.’s medical records were admitted as evidence, but defense counsel also

presented the court with a shorter excerpt of the records for ease of reference. According to Noland,

this excerpt contained documents that were detrimental to Noland, and counsel was therefore

deficient in calling attention to it while failing to present, argue, or cross-examine witnesses using

                                                  16
other portions of the medical records that were more favorable to the defense. Noland alleges that

these errors served to enhance K.B.’s credibility at Noland’s expense.

                All of K.B.’s medical records, including those reflecting her extensive psychiatric

history, were admitted at trial and therefore before the trial court to consider in determining Noland’s

guilt. Further, the record shows that trial counsel made substantial efforts to discredit K.B. using

these records. In fact, counsel cross-examined K.B. about many of the facts recited in the medical

records that Noland now claims were favorable to his defense and should have been emphasized.

For instance, counsel cross-examined K.B. about her possession of alcohol at school, as well as her

history of self-mutilation and acting out sexually. In addition, counsel cross-examined K.B. about

the discrepancies in the dates when she claimed to have been abused and about multiple lies she

told while hospitalized. In closing argument, counsel directed the court to K.B.’s medical records,

arguing that they indicate that K.B. “is a young lady who has had a time being able to tell the truth

about things.” Thus, the fact that Noland’s attorney declined to take any additional approach to

discredit K.B. by emphasizing a different portion of her medical records is insufficient to overcome

the strong presumption of reasonably professional assistance. See Strickland, 466 U.S. at 689. Noland

therefore fails to establish deficient representation with respect to K.B.’s medical records. See id.


Prior allegation by K.B.

                Noland next argues that his attorney was deficient in failing to investigate and present

the fact that, in K.B.’s prior allegation of sexual assault by her friend’s older brother, K.B. originally

claimed he had raped her forcibly but later admitted to her mother that she had lied and the encounter

was not forcible. Noland claims that this prior allegation and subsequent admission could have been

used to discredit K.B. at trial. However, Noland does not establish that his attorney’s performance

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was deficient in this respect. As previously discussed, counsel made significant efforts to impeach

K.B.’s credibility at trial. The fact that counsel could have pursued an additional means of discrediting

her fails to overcome the strong presumption of that counsel provided reasonable professional

assistance. See generally id. at 689. Noland fails to prove that he received ineffective assistance

regarding this prior allegation by K.B.


Presentation of evidence prior to enhancement ruling

                Next, we address Noland’s complaint concerning counsel’s request for the trial court

to rule on the enhancement paragraph before the presentation of punishment evidence. Noland’s

attorney asked the court to rule on the enhancement at the outset of the punishment hearing,

reasoning that the automatic life sentence that would result if the court found the enhancement to be

true would eliminate the need for further punishment evidence. However, the trial court declined

to rule before hearing testimony. Noland asserts that counsel’s request reflected a misunderstanding

of the applicable law that resulted in ineffective assistance. However, he fails to support this argument

with proof of either deficient performance or prejudice.

                First, counsel’s testimony at the new-trial hearing included an explanation of his

strategy in making the complained-of request. At issue before the court was whether Noland’s prior

charge in Ohio for corrupting a minor could be used to enhance Noland’s punishment in the current

proceeding. Counsel testified that he did not want the trial court to hear any details of the charge

against Noland in Ohio before assessing punishment. According to counsel, he knew that certain

witnesses he intended to call were aware of the charge and would have to discuss it if asked by the

State. To reduce that possibility, counsel testified, he preferred to question these witnesses once the

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court had already found the enhancement based on the Ohio conviction not true. Viewed in the light

most favorable to the trial court’s ruling, this testimony supports a finding by the trial court that a

reasonable trial strategy supported counsel’s conduct in making the request. Strickland, 466 U.S.

at 689; Bounhiza, 294 S.W.3d at 783.

                In addition, even if the request was improper, the trial court declined the request,

received evidence in support of Noland, and ultimately found the enhancement not true. After

hearing this evidence, the court assessed punishment at forty years’ imprisonment, far short of the

life sentence it could have imposed under the statutory guidelines. See Tex. Penal Code Ann. § 12.32

(West 2011), § 22.021. Consequently, it is unclear how counsel’s request or the timing of the ruling

in Noland’s favor had any negative impact on the outcome of the punishment hearing. See id.

Noland has not provided affirmative proof of prejudice from any deficient performance by counsel

on this issue. See Mitchell, 989 S.W.2d at 748; Bazanes, 310 S.W.3d at 43. Accordingly, the trial

court would have been reasonable to conclude that no prejudice occurred. See Ramirez, 301 S.W.3d

at 415; Charles, 146 S.W.3d at 208.


Additional punishment witnesses

                Finally, Noland complains that trial counsel should have interviewed additional

witnesses, such as Noland’s mother, his employer, and various friends and acquaintances of Noland,

and presented their testimony at the punishment hearing. Noland sets forth extensive mitigation

testimony that he claims these witnesses would have given and concludes that counsel was

ineffective for failing to call them to the stand.



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               After the trial court declined to rule on the enhancement, the defense called two

witnesses: a realtor, who testified to Noland’s reliability and trustworthiness as a provider of air

conditioning repair, and Shawna, who testified as to Noland’s family obligations. The defense also

introduced three letters in support of Noland. The court then assessed punishment at forty years’

imprisonment as described above.

               From the record before us, Noland fails to show that no reasonable trial strategy

could justify counsel’s failure to call the additional witnesses. See Strickland, 466 U.S. at 689. As

previously discussed, counsel testified at the hearing on the motion for new trial that several of the

witnesses were aware of the Ohio charge and would have been able to give details of the charge

on cross-examination. Thus, once the court refused to rule on the enhancement prior to hearing

evidence, there was a risk that cross examination of these witnesses could influence the court’s

ruling on the enhancement. By presenting character witnesses by affidavit, counsel successfully

avoided this risk. Because this constitutes a reasonably sound strategic motivation, Noland fails to

establish that counsel’s decision to not call the additional witnesses was outside the range of

reasonably professional assistance.

               Further, Noland again fails to prove that the alleged error resulted in prejudice to

his defense. See Cash, 178 S.W.3d at 818 n.6; Garcia, 57 S.W.3d at 440. Noland fails to explain

how any further testimony would have caused him to receive an even lesser sentence than

forty years’ imprisonment for aggravated sexual assault of a child. Accordingly, the trial court could

have determined that there was no reasonable probability that Noland’s punishment would have

been different but for counsel’s alleged failure to question additional witnesses. See Strickland,

466 U.S. at 694.

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               With respect to each of Noland’s “examples” of ineffective assistance of counsel,

we have determined that Noland has failed to demonstrate either deficiency, prejudice, or both. See

Strickland, 466 U.S. at 687; see also Garcia, 57 S.W.3d at 440. Moreover, we cannot say that

the totality of representation received by Noland fell below an objective standard of professional

norms. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Cf. Garcia v. State,

308 S.W.3d 62, 76 (Tex. App.—San Antonio 2009, no pet.) (holding that totality of representation

was ineffective where counsel gave erroneous community supervision advice resulting in jury

waiver, called defendant to testify about prior bad acts, and failed to realize that applicable statute

did not authorize “outcry” testimony as to adult complainant). Consequently, the trial court did not

abuse its discretion in denying Noland’s motion for new trial. See Ramirez, 301 S.W.3d at 415.

Noland’s sole point on appeal is overruled.


                                          CONCLUSION

               We affirm the trial court’s judgment.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Justices Puryear, Henson and Goodwin

Affirmed

Filed: July 20, 2012

Do Not Publish




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