Danny Lane Dillon v. State

NO.

12-06-00135-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DANNY LANE DILLON, § APPEAL FROM THE 145TH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § NACOGDOCHES

COUNTY, TEXAS

MEMORANDUM

OPINION

Danny

Lane Dillon appeals from his convictions for aggravated sexual assault of a

child and indecency with a child. In

eight issues, he argues that he received ineffective assistance of counsel and

that the trial court erred in admitting statements made by the complaining

witness. We affirm.

Background

Because Appellant does not contest

the sufficiency of the evidence, we will briefly state the facts that support

the conviction. At one time Appellant

was married to the complaining witness’s grandmother. At the time of trial, the complaining witness

was a twenty-one year old enlisted member of the U.S. Army. She testified that Appellant sexually

assaulted her when she was seven years old.

She did not report this to law enforcement until 2000, when she was

fifteen. The trial court admitted, over

Appellant’s objection, the testimony of several witnesses in whom the

complaining witness confided before making a report to law enforcement. Appellant gave a statement to the

police. He denied that he had sexual

intercourse with the complaining witness.

He did tell the police that on several occasions she “groped” him, that

he became “excited” on several of those occasions, and that he might have

touched the child’s vagina on one occasion.

Appellant was found guilty by a

jury. A separate punishment hearing was

held. Appellant testified at the

punishment hearing but did not present any other evidence. The jury assessed punishment at sixty years

of imprisonment. Following the trial,

Appellant filed a motion for a new trial.

A hearing was held on that motion.

Among the claims advanced at the hearing was the claim that Appellant’s

counsel failed to provide effective assistance of counsel because he did not

locate or interview character witnesses.

The motion for new trial was overruled by operation of law. This appeal followed.

Ineffective Assistance of Counsel

In his first and second issues,

Appellant argues that the trial court should have granted his motion for new

trial. Specifically, he argues that his

counsel rendered ineffective assistance because counsel’s pretrial

investigation did not include seeking out or developing character witnesses for

use in the punishment phase of trial.

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 an

appellant to demonstrate that trial counsel’s representation fell below an

objective standard of reasonableness under prevailing professional norms. See Strickland , 466 U.S.

at 688 , 104 S. Ct. at 2065 ; McFarland v. State , 928 S.W.2d 482,

500 (Tex. Crim. App. 1996). An

ineffective assistance of counsel claim is not reviewed for isolated or

incidental deviations from professional norms, but on the basis of the totality

of the representation. See Strickland ,

466 U.S. at 695 , 104 S. Ct. at 2069 .

The second step requires the

appellant to show prejudice from the deficient performance of his

attorney. See Hernandez v.

State , 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must

show that there is a reasonable probability that the result of the proceeding

would have been different but for counsel’s deficient performance. See Strickland , 466 U.S.

at 694 , 104 S. Ct. at 2068 .

We begin with the strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance. See Jackson v.

State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we presume

counsel’s actions and decisions were reasonable and were motivated by sound

trial strategy. See id . Appellant has the burden of proving

ineffective assistance of counsel. See

id .

Generally, we review a trial court’s

denial of a motion for new trial under an abuse of discretion standard. See Holden v. State , 201 S.W.3d

761, 763 (Tex. Crim. App. 2006) (citing Lewis v. State , 911

S.W.2d 1, 7 (Tex. Crim. App. 1995)). In

the context of ineffective assistance of counsel, we review the ultimate

question of prejudice de novo, but the trial court’s decision is afforded

deference on any underlying factual determinations. Johnson v. State , 169 S.W.3d

223, 239 (Tex. Crim. App. 2005). When no

express factual findings are made by the trial court, we may “impute implicit

factual findings that support the trial judge’s ultimate ruling on that motion

when such implicit factual findings are both reasonable and supported in the

record.” Charles v. State ,

146 S.W.3d 204, 213 (Tex. Crim. App. 2004).

Facts

Appellant’s counsel’s investigation

of this case did not include the development, cultivation, or gathering of

character witnesses to offer mitigating evidence in the event that Appellant

was convicted. This was not because

counsel believed it was certain that Appellant would be acquitted. Rather, in light of a statement Appellant had

given to the police, counsel believed that a conviction was more likely than

not. Counsel, who is board certified in

criminal law and testified he had handled a number of cases involving these

issues, believed that character witnesses were unhelpful in cases of sexual

assault of a young child. He testified

at the motion for new trial hearing that he had used or considered using such

witnesses in capital cases and that he thought they might be useful in cases

such as a theft case. But he also said

that “[i]n an aggravated sexual assault on a seven year old, I just don’t think

they’re helpful.” Counsel was concerned

that character witnesses would be asked how a convicted child rapist should be

punished, and that the answer would not be helpful. Furthermore, the pretrial

discovery revealed that another child had accused Appellant of sexually

assaulting her. It appears that accuser

was not available to testify, but counsel was concerned that character

witnesses might be asked about that accusation.

Counsel testified that he discussed his view of character witnesses with

Appellant and that he discussed witnesses with Appellant in a general sense. 1

At the motion for new trial hearing,

Appellant presented affidavits from fourteen witnesses. One was his wife, who met him after charges

had been filed, and at the time of trial had been married to him for less than

a year. She also testified at the hearing. Other affidavits admitted at the hearing were

from Appellant’s two stepchildren, one living in Alaska, his mother, his

sister, his nephew, his daughter, his brother, his sister in law, two of his

wife’s friends, two coworkers, and his son.

Analysis

In Strickland , as in

this case, the trial lawyer did not investigate character witnesses, and the

convicted defendant came forward with fourteen character witnesses in

postconviction proceedings. Strickland ,

466 U.S. at 675 , 104 S. Ct. at 2058 . The

Court upheld the conviction, holding that trial counsel’s performance was not

deficient and that “the decision not to seek more character or psychological

evidence than was already in hand was . . . reasonable.” Id. , 466 U.S. at 699 , 104

S. Ct. at 2070–71.

The Court further held that “strategic

choices made after less than complete investigation are reasonable precisely to

the extent that reasonable professional judgments support the limitations on

investigation.” Id. , 466

U.S. at 690–91, 104 S. Ct. at 2066 . In

other words, trial counsel has a duty to make reasonable investigations or to

make a reasonable decision that a particular investigation is unnecessary. A particular decision not to investigate must

be “directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel’s judgments.” Id. , 466 U.S. at 692 , 104 S.

Ct. at 2066 .

In Wiggins v. Smith ,

539 U.S. 510 , 524–25, 123 S. Ct. 2527 , 2536–37, 156 L. Ed. 2d 471 (2003), the

Court applied Strickland , but held that the representation was

deficient. The Court concluded that

counsel’s investigation was below professional standards, and further that the

investigation performed should have alerted him that further investigation was

warranted. Id. , 539 U.S.

at 525 , 123 S. Ct. at 2537 . In

proceedings after trial, Wiggins showed that his attorney failed to discover

the facts surrounding his upbringing, facts that the Supreme Court considered

to be powerful mitigating evidence. Id. ,

539 U.S. at 534 , 123 S. Ct. at 2542 .

These cases represent two bounds of

the law regarding pretrial investigation of mitigation evidence. On one hand, a lawyer does not automatically

render ineffective assistance of counsel if he does not investigate character

witnesses, and counsel’s decision is to be assessed with a heavy measure of

deference. Strickland , 466

U.S. at 691 , 104 S. Ct. at 2066 . On the

other hand, a lawyer is ineffective if his investigation is below professional

standards or he does not follow up on reasonably promising leads. Id. , 539 U.S. at 525 , 123 S.

Ct. at 2537 .

In this case, trial counsel did not

think character witnesses could be effective in a child sexual assault case

where the victim was seven years old at the time of the offense. 2 Nothing Appellant developed after trial

suggests that trial counsel was incorrect in this assessment, and we can say

with reasonable certainty that this trial counsel would not have called any of

these witnesses had he done the investigation undertaken by appellate counsel. 3 More importantly, counsel did not ignore any

promising leads. He discussed his

strategy with Appellant, and he discussed witnesses, if not specifically

character witnesses, with Appellant.

Appellant has not shown any enticing avenues for investigation that were

ignored. It is true that there would

have been no harm in seeking out character witnesses prior to trial. But we do not think that Appellant’s right to

counsel was abrogated because his attorney did not think character witnesses

would be helpful and did not see anything in his pretrial investigation that

caused him to think that there was promising mitigating evidence to be

found. See Rompilla v. Beard ,

545 U.S. 374, 389 , 125 S. Ct. 2456, 2467 , 162 L. Ed. 2d 360 (2005) (“Questioning

a few more family members and searching for old records can promise less than

looking for a needle in a haystack, when a lawyer truly has reason to doubt

there is any needle there.”).

Exploring mitigation evidence is an

important part of the defense in many criminal cases. There are cases, Rompilla and Wiggins

for example, where counsel’s failure to follow up on promising leads during pretrial investigation

is so outside of professional norms that the accused is entitled to a new trial

despite the state’s having done nothing to impinge on the accused’s

rights. But neither is the failure, or

the declining, to investigate character witnesses always below professional

norms. Appellant’s attorney decided to

humanize his client, and present his personality and his story by calling him

as a witness. He decided not to call

character witnesses, and he made that decision early in the process, to the

extent that he did not investigate character witnesses. Such a strategy is risky, and will result in

the representation being found to be unprofessional when there are promising

leads that should have been followed.

Appellant has identified no such leads here. Appellant would be entitled to relief if the

rule were that an attorney who fails to conduct pretrial investigation of

character witnesses is ineffective in every case, every time. However, that is not the rule.

Appellant has directed us to two

intermediate courts of appeals decisions considering similar issues. In Milburn v. State , 15 S.W.3d

267 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d), the defendant was

convicted of possession of more than 400 grams of cocaine. Counsel did not investigate character

witnesses. Id. at

269 . At the hearing on the motion for

new trial, the parties stipulated to the testimony of twenty friends or

relatives who could have offered favorable character evidence. Id. Counsel testified that he did not explore

this evidence because, in his experience, juries did not place much weight on

the testimony of family members. Id.

at 270 . Characterizing this as a “decision

to forego presentation of mitigating evidence,” the court found counsel’s

representation to be inadequate because such a decision could be made

reasonably only “after evaluating the available testimony and determining that

it would not be helpful.” Id . In Shanklin v. State , 190

S.W.3d 154 (Tex. App.–Houston [1st Dist.] 2005), pet. dism’d ,

improvidently granted , 211 S.W.3d 315 (Tex. Crim. App. 2007), 4

the defendant killed another person in a bar fight. Counsel did not interview character witnesses

and did not present any character evidence at the sentencing hearing. Id. at 164. Counsel gave no reason for this course of

action and said that his failure to investigate and his decision not to call

the witnesses did not result from “any reasoned trial strategy.” Id .

The Shanklin decision

is easily distinguished from this case because counsel in Shanklin offered

no reason for his failure to conduct an investigation. Furthermore, the court held that “defense

counsel’s failure to investigate and call any punishment witnesses amounts to

deficient performance,” without considering the reasons the investigation was

curtailed. Id. at

165 . The decision to call witnesses is

related to the decision not to investigate, but Strickland and Wiggins

stand for the proposition that a failure to investigate the mitigation case is

not per se an abdication by counsel.

Rather, as the court of criminal appeals did in Ex parte Briggs ,

187 S.W.3d 458, 467 (Tex. Crim. App. 2005), the reviewing court must assess the

reasons for counsel’s actions. In both Briggs

and Shanklin there was no strategic reason for curtailing the

investigation, and so the performance prong of the Strickland

test was met.

We distinguish this case from Milburn

for a related reason. Citing its

previous decision in the same case, the court held that counsel’s failure to

investigate character witnesses fell below the professional norms. Milburn , 15 S.W.3d at 269–70. In its previous decision, the court had

determined that counsel’s lack of investigation was not entitled to deference

as a strategic choice because counsel said he thought the witnesses, if called,

would hurt his case, and so he did not investigate them. See Milburn v. State , 973

S.W.2d 337, 344 (Tex. App.–Houston 1998), rev’d , 3 S.W.3d 918 (Tex.

Crim. App. 1999). The court did not

explicitly consider whether the limitation on the investigation was reasonable,

but determined that the decision not to call a witness was entitled to

deference only if he conducted an investigation. Id. (“This decision is a prime

example of a strategic choice made after a less than adequate investigation

which, therefore, is not supported by informed professional judgment.”).

As we stated, the reasons for the

limitation on the investigation must be assessed. 5 In this case, an experienced attorney decided

not to investigate character witnesses because he did not think they would be

helpful and because his pretrial investigation did not cause, nor should it

have caused, him to believe that further investigation of character witnesses

would be helpful. This was a reasoned

strategic decision. We owe deference to

the strategic decisions of counsel.

Appellant has not identified promising lines of inquiry ignored by

counsel, and we conclude that counsel’s decision not to investigate character

witnesses was reasonable and within the wide range of reasonable professional

assistance. 6

Even if the decision not to

investigate was unreasonable, Appellant has not shown that he suffered

prejudice. Appellant’s burden is

high. It is not sufficient to show

merely that the errors had some conceivable effect on the outcome of the

proceeding. See Strickland ,

466 U.S. at 693 , 104 S. Ct. at 2067 ; Williams , 529 U.S. at 394,

120 S. Ct. at 1514; see also Ex parte Varelas , 45 S.W.3d 627, 629

(Tex. Crim. App. 2001). Virtually every

act or omission of counsel would meet that test. Strickland , 466 U.S. at 693 ,

104 S. Ct. at 2067 . Rather, Appellant

must show that counsel’s errors “actually had an adverse effect” on the

case. See Roe v. Flores–Ortega ,

528 U.S. 470, 482 , 120 S. Ct. 1029, 1037 , 145 L. Ed. 2d 985 (2000) (quoting Strickland ,

466 U.S. at 693 , 104 S. Ct. at 2067 ).

Appellant has not shown that any

failure to investigate had an adverse effect.

In this case, Appellant had been found guilty of a sexual assault on his

former wife’s seven year old granddaughter.

During the investigation, Appellant told the police that the complaining

witness sought to stimulate him and that he may have touched her vagina. Those facts presented a very different

scenario from a drug offense or an imperfect self defense homicide, as were

presented in Milburn and in Shanklin .

In contrast to Rompilla and

Wiggins , 7 we have little doubt that counsel

would not have offered any of the character evidence had he known of it. The witnesses appear to be reasonable people

who care about Appellant, but there was nothing especially compelling about

their testimony. One of the witnesses

said there was a lack of evidence to support the conviction, while another

asked why Appellant was “prosecuted so severely and unjustly” as the child was “not

kidnapped or raped.” Furthermore,

Appellant’s own testimony at the punishment hearing illustrates the concern

that his attorney had about calling character witnesses. The prosecutor asked Appellant the following:

“But, you would agree with me that somebody who committed these offenses ought

to be locked away for a long, long time?”

Appellant answered, “Yes.”

Appellant’s wife was the only

witness to testify in person at the hearing, and her testimony suffered from

the same problems. She had met Appellant

after the indictment was returned, and she testified that he was honorable,

truthful, and kind, and that on one occasion he gave money to a person who came

up to them in a night club and needed help.

On cross examination she admitted that she had known him only four years

and that an honorable man does not “rape a small child.” She stated that any sexual interaction

between Appellant and the child was limited to the child “experimenting” with

him, and that she thought the jury would be persuaded of her belief in

Appellant’s innocence by the fact that she allowed her children and grandchild

to be around him. In short, while her

testimony did bring out some characteristics that were not otherwise

highlighted, her opinion was based on a version of reality that the jury had

rejected when it found Appellant guilty.

Finally, the matter of the extraneous offenses is relevant to the harm

analysis. The character witnesses could

have been asked about the other allegations, something that counsel was able to

minimize during the trial.

This case is not like Wiggins

where there was substantial mitigating evidence not offered and the jury was

given the choice between life imprisonment and the death penalty, both very

serious punishments. And this case is

not like Milburn , where counsel’s reasons for not calling

witnesses—he thought their testimony would be undermined by the fact that his

client had previously been on probation—turned out not to be the case. Milburn , 973 S.W.2d at

344 . Appellant essentially must prove

that he would have received a lesser sentence if the character evidence he

developed after trial had been offered.

Appellant does not address this problem directly. Rather, he complains of other decisions made

by counsel, including calling Appellant as a witness at all, asking questions

about a minor criminal conviction that would have otherwise been unmentioned,

and failing to prepare him for his testimony.

Appellant also cites Milburn and Shanklin ,

in which courts of appeals reversed under similar circumstances.

Based upon our review of the record

before us, we think it likely that any benefits to be gained from the use of

character witnesses in this case would be offset if not supplanted by cross

examination of those witnesses.

Specifically, we have not seen any demonstration that the witnesses put

forward by Appellant would have been able to give helpful answers to questions

about what punishment they thought was appropriate for those who sexually

assault children, or to questions about the other sexual assault

allegation. In fact, on the record

developed before the trial court, it appears that these witnesses may well have

done harm to Appellant’s position. After

considering all of the facts, we cannot conclude as a matter of law that

Appellant has shown there is a reasonable probability of a different result if

the witnesses had been called. We

overrule Appellant’s first and second issues.

Out of Court Statements of the Complaining

Witness

In his third, fourth, fifth, sixth,

seventh, and eighth issues, Appellant argues that the trial court erred when it

allowed witnesses to testify about the complaining witness’s statements to them

relating to the charged offenses.

Specifically, Appellant argues that the complaining witness’s statements

were inadmissible hearsay and that his constitutional right to confrontation

was violated by the introduction of the statements.

Facts

Three witnesses testified about

statements made by the complaining witness.

The first, a schoolmate of the complaining witness, testified that the

complaining witness had told her that Appellant had molested her. Those conversations had been of a general

nature, but in April 2000, the complaining witness told her specifically about

the sexual assaults. The witness begged

her to tell her mother. The complaining

witness refused, but they agreed to tell the witness’s mother. The witness testified that she, and then the

complaining witness, told the witness’s mother, and they all agreed to tell the

complaining witness’s mother thereafter.

She testified that the complaining witness then told her own mother

about the sexual assaults.

The witness’s mother testified that

the complaining witness told her about the assault and that she facilitated the

conversation between the complaining witness and the complaining witness’s

mother. Finally, the complaining witness’s

mother testified that the complaining witness told her that Appellant had “sexually

molested or abused” her. She testified

that they reported the matter to the authorities after the complaining witness

told her the story, and had the complaining witness examined by a doctor.

Appellant objected to this testimony

on the grounds that it was hearsay and that the statements violated his right

to confront witnesses. The State argued

that it did not seek to introduce the statements for the truth of the matter

asserted. Rather, it argued, the

statements were offered to show the reasons for the actions taken by the

witnesses after the statements were made.

The trial court overruled the objections, although it did sustain an

objection with respect to at least one question, and gave limiting instructions

to the jury. The limiting instructions

were slightly different each time they were given. The court’s final charge to the jury

instructed the jury that the statements made by the complaining witness, “if

any, were offered for the limited purpose of explaining why [the witnesses]

acted in the manner that they did, and you may consider them for no other

purpose.”

Confrontation

Clause

Appellant’s third, fifth, and

seventh issues relate to the Confrontation Clause of the United States

Constitution. The Confrontation Clause

of the Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against

him.” In this context, the Sixth

Amendment confrontation guarantee means that testimonial evidence is inadmissible

unless the defendant has had the opportunity to cross examine the witness. See Davis v. Washington , 547

U.S. 813 , __, 126 S. Ct. 2266 , 2273–74, 165 L. Ed. 2d 224 (2006); Crawford

v. Washington , 541 U.S. 36, 59 , 124 S. Ct. 1354, 1369 , 158 L. Ed. 2d

177 (2004).

Appellant argues that his right to

confront witnesses was violated because the three witnesses were permitted to

testify as to what the complaining witness told each of them. The State argues that the Confrontation Clause

was not violated because the statements were not hearsay. We will discuss whether these statements are

hearsay or not in the following section, but the State’s argument does not

properly apply Crawford .

The essence of Crawford is that the Constitution requires

cross examination, if requested by a defendant, as a prerequisite to the

admission of testimonial statements by witnesses who do not appear at

trial. Id. , 541 U.S. at

68 , 124 S. Ct. at 1374 (“Where testimonial evidence is at issue, however, the

Sixth Amendment demands what the common law required: unavailability and a

prior opportunity for cross-examination.”).

The bar to be cleared is the Confrontation Clause. Whether a particular piece of evidence is

admissible under the rules of evidence simply is not the appropriate inquiry—evidence

that is forbidden by the Confrontation Clause is inadmissible, and the rules of

evidence do not provide an alternate route of admissibility. See Shuffield v. State ,

189 S.W.3d 782 , 790–91 (Tex. Crim. App. 2006).

There are two problems with

Appellant’s Confrontation Clause argument, however. First, the complaining witness, whose

statements were admitted, testified at trial.

It is not clear that her statements were testimonial. But even if they were, the Confrontation

Clause and Crawford place no restraints “at all on the use of

prior testimonial statements” when the “declarant appears for cross-examination

at trial.” Id. , 541

U.S. at 59 n.9, 124 S. Ct. at 1369 n.9 (citing California v. Green ,

399 U.S. 149, 162 , 90 S. Ct. 1930 , 26 L. Ed. 2d 489 (1970)). Second, the Court held in Crawford

that the Confrontation Clause “does not bar the use of testimonial statements

for purposes other than establishing the truth of the matter asserted.” Crawford , 541 U.S. at 59 n.9,

124 S. Ct. at 1369 n.9. Either rationale

is sufficient to allow these statements to clear the Confrontation Clause

bar. Appellant had the opportunity to cross

examine the speaker, and the statements were admitted for a reason other than

the truth of the matter asserted. As

such, Appellant’s right to confront witnesses was not violated. 8 We overrule Appellant’s third, fifth, and

seventh issues.

Hearsay

In his fourth, sixth, and eighth

issues, Appellant argues that these statements were hearsay and that no hearsay

exception applies. We review a trial

court’s decision to admit evidence over a hearsay objection for an abuse of

discretion. See Willover v. State ,

70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

We will not disturb the evidentiary ruling of the trial court unless it

falls outside the zone of reasonable disagreement. See

Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

The rules of evidence forbid hearsay

statements. See Tex. R. Evid . 801(d). By rule, hearsay is “a statement, other than

one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” 9 Id.

The statements here were offered not

to prove the assertions within them, but to show what actions the witnesses

took after receiving that information.

This makes the statements nonhearsay, because they are not offered for

the truth of the matter asserted. See

Tennessee v. Street , 471 U.S. 409, 414 , 105 S. Ct. 2078 , 2081–82;

85 L. Ed. 2d 425 (1985) (jury instruction sufficient to protect against use of

out of court statement for the truth of the matter asserted); Martinez v.

State , 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (statement not hearsay

if not offered to prove truth of the matter asserted); Dinkins v. State ,

894 S.W.2d 330, 347-48 (Tex. Crim. App. 1995).

Appellant cites Schaffer v.

State , 777 S.W.2d 111 , 114–15 (Tex. Crim. App. 1989), for the

proposition that a police officer may not testify about historical aspects of

the case, “replete with hearsay statements in the form of complaints,” under

the guise of explaining the reasons for the officer’s subsequent actions. Schaffer is distinguishable on

two important grounds. First, the

hearsay in Schaffer was indirect hearsay. Although not eliciting the statement itself,

the State “did indirectly that which it could not do directly,” that is admit

the contents of the absent witness’s statement.

Id . at 114. The court

held that when the evidence is being offered to prove the statement made

outside of court, clever framing of questions will not make the implied

assertions in the answers nonhearsay. Id . In Head v. State , 4 S.W.3d 258,

263 (Tex. Crim. App. 1999), the court of criminal appeals considered an

analogous case involving implied hearsay.

In that case, the court acknowledged that it was a close case but held

that the trial court could have reasonably concluded that the “testimony did

not reveal to the jury the substance of the out-of-court statements,” and so

there was not an implied assertion. Id.

By contrast, in this case, the

actual out of court statements were admitted.

Therefore, the rule from Shaffer and Head

does not apply because there is no question, as there was in those cases, as to

whether the out of court statements made their way to the jury; they did. The statements would be hearsay if offered

for the truth of the matter asserted.

But therein lies the second distinction between this case and Schaffer . In Schaffer the implied

statements made it to the jury, and the jurors were permitted to consider those

statements for the truth of the matter implied.

Schaffer , 777 S.W.2d at 114 (“We therefore hold that the

trial court improperly allowed the State to introduce hearsay testimony before

the jury.”). In this case, the State did

not offer these statements to prove their contents, and they were not admitted

for that purpose. Rather, it offered

them to show what the recipients did after hearing the information and to

explain the course of events that followed.

The jury was instructed accordingly.

Such evidence is permissible, but

there remain boundaries. The out of

court statements must have relevance other than to prove the contents of the statements. See Delapaz v. State ,

228 S.W.3d 183, 211 (Tex. App.–Dallas 2007, pet. filed). Stated another way, a statement is hearsay

unless its relevance does not depend on its being true. See Bell v. State , 877 S.W.2d

21, 24 (Tex. App.–Dallas 1994, pet. ref’d). 10 Appellant did not object on the grounds that

the evidence was irrelevant. Assuming

that Appellant’s blanket hearsay objection was sufficient to apprise the trial

court that the statements should not be admitted because they were not relevant

if untrue, the trial court did not abuse its discretion. It allowed the statements to show what the

witnesses did after being told of the assault because those actions did not

depend on the statements being true.

Appellant further complains that the

evidence admitted was broader than was necessary simply to show the reasons for

the witnesses’ actions. For the most

part, the State did ask its witnesses to relate what they had been told in a

limited fashion, not to repeat the words, and to generalize. At least twice Appellant made further

objections when a witness began to relate the details of the complaining

witness’s report, and those objections were sustained. But there was also testimony that included

the specifics of the sexual assault. Those specifics were not relevant to show why

witnesses reported it to the next person.

Appellant obtained a running

objection to hearsay evidence. Assuming

this running objection was sufficient to preserve a complaint that the

specifics of Appellant’s assault were not relevant, and further assuming that

the trial court abused its discretion in allowing that testimony, any error in

the admission of inadmissible hearsay is nonconstitutional error. See Johnson v. State ,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Lee , 21 S.W.3d at

538. Nonconstitutional error that does

not affect substantial rights must be disregarded. See Tex.

R. App. P . 44.2(b). A substantial

right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict.

King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App.

1997).

Appellant argues that he was harmed

because his right to cross examine witnesses was damaged. He also argues that he could not effectively

cross examine because he had to discredit four people and not just the

complaining witness and that, because of the out of court statements, he “had

been convicted before [the complaining witness] even testified.” These arguments do not show harm. Appellant had every opportunity to cross

examine witnesses. In fact, some

attorneys would relish the opportunity to examine a story from four different

angles, with the vagaries of hindsight and memory, in an attempt to confuse the

issues, if nothing else. See , e.g. ,

United States v. Wade , 388 U.S. 218, 257 , 87 S. Ct. 1926, 1948 ,

18 L. Ed. 2d 1149 (1967) (J. White, concurring in part, dissenting in part)

(Writing about defense attorneys in criminal cases, Justice White wrote: “If he

can confuse a witness, even a truthful one, or make him appear at a

disadvantage, unsure or indecisive, that will be his normal course.”). Furthermore, Appellant did not need to

discredit the other witnesses with respect to the statement they heard from the

complaining witness. Two of the three

witnesses readily admitted that they did not know anything about the offense

except what they had heard from the complaining witness; the third witness was

not asked. 11

The trial court instructed the jury

not to consider the statements for the truth of the matters asserted, and the

complaining witness testified. The

complaining witness, a member of the U.S. Army at the time of trial, apparently

made a good witness, 12 testified about the specifics of the

complaint herself, and was available for cross examination. Furthermore, Appellant made a statement to

the police that included an account that jurors could have taken as an

admission of some of the allegations against him. In light of the circumstances, we are

persuaded that any error in admitting the specifics of the complaining witness’s

out of court report of the assault did not prejudice Appellant’s substantial

rights. We overrule Appellant’s fourth,

sixth, and eighth issues.

Disposition

Having overruled Appellant’s eight

issues, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered November 30,

2007.

Panel

consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 One portion of the

record is difficult to parse:

Q: Did you ever talk to [Appellant]

about character witnesses, or do you recall?

A: I’m not certain. We did talk about – – yeah, we did. We did talk about that.

Q: Did you talk with [Appellant] about

whether or not there might be people out there who could say something that

would be beneficial to his case?

A: No.

But, I suspect this couple sitting on the front row seem to have an

opinion about every answer I give. I

should have talked to them because I’m sure they would have had a key to the

kingdom on this case.

And then

Q: . . . [w]as he able to give you any

information or any witnesses that might be beneficial to his case?

A: Not really.

2 Counsel was also concerned that the witnesses would be cross examined

about the other sexual assault allegation.

This is a reason not to call a witness, but not a reason not to

investigate.

3 We think counsel could have reasonably anticipated the kind of

character witnesses who were developed in the motion for new trial. They were Appellant’s new wife, children,

coworkers, and some of his new wife’s friends.

They have affection for Appellant, but the character evidence they could

have offered was little more than that.

4 The petition for discretionary review was sought on a ground not

related to pretrial investigation.

5 Appellant does not argue that the investigation itself was below

professional standards, just that leads were not investigated. In his brief, he essentially asks us to hold

that “[Counsel] must investigate all leads which might generate

mitigating evidence such as character witnesses who could put a favorable light

on the client, and encourage jurors to assign a lower sentence.” To the extent that his argument could be

construed as a contention that investigation of character witnesses is required

by some professional standard, Appellant has not shown such a professional

standard, and Strickland stands for the proposition that some

limitations on investigation of character evidence can be reasonable. See Strickland , 466 U.S.

at 699 , 104 S. Ct. at 2070–71.

6 Appellant also asks rhetorically in his brief why his attorney did not

present the fourteen character witnesses.

The decision not to present witnesses who have been investigated is a

different question. Counsel’s decisions about

which witnesses to call are afforded substantial deference. See Weisinger v. State ,

775 S.W.2d 424, 427 (Tex. App.–Houston [14th Dist.] 1989, pet. ref’d).

7 In each case, defense counsel did not uncover the truly atrocious

conditions in which the defendant had grown up.

See Rompilla , 545 U.S. 374 , 391–92, 125 S. Ct. at 2468–69;

Wiggins , 539 U.S. at 516–17, 123 S. Ct. at 2533 .

8 Appellant also argues, without citation to authority, that his right to

confront witnesses was violated because he was not able to cross examine the

witness near in time to when the statements were made. While the Confrontation Clause causes many

cross examinations to occur closer in time to accusatory statements, because it

excludes many out of court accusations, that is not its purpose. We are aware of no timeliness requirement

imposed by the Confrontation Clause, and Appellant has not directed us to any

authority for such a proposition.

9 The Texas rules are broader than the Federal Rules of Evidence and do

not permit evidence that includes an implied assertion. See Mosley v. State , 141

S.W.3d 816, 830 (Tex. App.–Texarkana 2004, pet. ref’d); Cathy Cochran, Texas Rules of Evidence Handbook , 766–772 (5th

ed. 2003).

10 Another limitation, not raised by Appellant, is that

even a relevant statement may be inadmissible under Rule of Evidence 403 if it

is unduly prejudicial. See Cochran , supra note 9, at 782,

n.124 (citing United States v. Reyes , 18 F.3d 65 , 70–71 (2d Cir.

1994)).

11 For reasons that are difficult to discern, the State

asked the witnesses if they believed the complaining witnesses. Quoting again from Justice White: “[Prosecutors]

must be dedicated to making the criminal trial a procedure for the

ascertainment of the true facts surrounding the commission of the crime.” Wade ,

388 U.S. at 256 , 87 S. Ct.. at 1947. Appellant

did not object to this bolstering testimony, but seeking to show the veracity

of statements admitted for reasons other than the truth of the matter asserted

is inconsistent with the rationale for their admission.

12 This conclusion is not based on our assessment of her

testimony, but based on Appellant’s counsel’s statement during trial that she

had been an effective witness and his statement to the same effect during the

hearing on the motion for new trial.