Osborne, Ausbon

NO

773-IS

•COURT OF

IN THE

CRIMINAL APPEALS

ORIGINAL

OF TEXAS

PD-o-773- if

AUSBON OSBORNE,

Appellant <^pp j ^ 2015

U.

THE STATE OF TEXAS

Appellee

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FII'FDIfJ

* s:••'•*• -.U- IW

!I ^

COURT OF CRIMINAL APPF^

On Appeal from the

396th Judicial District Court SEP loZCj

Tarrant County, Texas

Trial No.13165B4R

Abel Acosta, CierK:

In Appeal No.07-13-00156-CR

from the

Court of Appeals

for the Seventh District of Texas

Amarillo, Texas

Ausbon Osborne #185 3B17

Hodge Unit

379 FM 2972 W

Rusk, TX 757B5

NO.

IN THE

COURT OF CRIMINAL APPEAL • S

OF TEXAS

Ausbon Osborne

Appellant

VS

The State of Texas

Appellee

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Appellant respectfully submits this petition for Discretionary

Review and moves that this Honorable Court grant review of this cause

and offers the following in support thereof;

STATEMENT REGARDING ORAL ARGUMENT

The Appellant requests oral argument in this cause, because such argu

ment may assist the Court in.applying the facts to the issues raised.

It is suggested that oral argument may help simplify the facts and cl

arify the issues.

STATEMENT OF THE CASE

The state initially charged Appellant in a one-count February 24,

2012 indictment in Cause No. 1255657; it alleged that Appellant insert

ed his finger into complainant's sexual organ on July 29, 2009. The

State added three counts under an indictment in Cause No. 13165 BAR that

was filed on February 28, 2013. The three additional counts alleged

that Appellant on or about July 29, 2009 penetrated or contacted comp-

ainant's female sexual organ, with his penis, touched her. sexual organ,

and caused her bodily injury. The conviction on all four counts under

The February 28, 2013 indictment are before this Honorable Court of Crim-

nal Appeals, v. •- ,' ":

STATEMENT OF PROCEDURAL HI5TR0Y

In cause No. 13165B4R THE Appellant was convicted with the offense of

four counts of Aggravated Sexual. Assault. The Appellant was convicted

of such offense on April 9, 2013 and appealed the conviction.~(On April

12, 2013). On May 29, 2015 the Amarillo Court of Appeals affirmed the

conviction. No motion for rehearing was filed. On &' <^T'" l-$ this

Petition for Discretionary Review was timely forwarded to the Court of

Criminal Appeals for filing pursuant to Rule 9.2(b), Texas Rule of App

ellant Procedure.

GROUNDS FOR REVIEW

I.

INSUFFICIENT EVIDENCE

The evidence was insufficient to support the conviction because there

was no rational basis for concluding that Appellant acted more then

recklessly, and because Appellant had a parental purpose. The evidence

was insufficient to prove any of the counts under a rigorous assessment

of the qualitative value of the evidence. One important consideration

was that complainant falsely accused her stepfather (Randels) of sim

ilar abuse two years earlier. *The charges against Randels were dism

issed in September of 2008. Complainant gave a tricky forensic interv

iew alleging that Appellant committed offense in question before this

Honorable Courts review. CBS Investigator Jerald Henderson was the only

witness who attributed an admission to Appellant in order to corroborate

complainant's allegation about Sexual Abuse in question, CPS Investigator

did no such recordings in his efforts to obtain the evidence such as phone

calls and certain specific interview in regards to the evidence that was

used in the conviction of Appellant, by witness CPS (Henderson).

INSUFFICIENT EVIDENCE

1.) Complainant accused her mother's boyfriend of sexual abuse in

2008, but the charges were dismissed. Compiaiant accused live-

^•'' in boyfriend, De ma re us Carter in a December 2010-investigation

of physical abuse.

2.) Draper is Appellant wife, Draper took complainant to the hosp-

-".t.:. ital, where they said that nothing was wrong with complainant.

3.) Appellant reference to his girlfriend son meant reference to

Ausbon Jr, his five year-old boy with Jennifer White.

4.) Detective Henz told the jury that the he reviewed the videotape

of,complainant's forensic i nterview, which was not- shown to the

jury, but he omitted that complainant went into detail about the

day when Jennifer White found complainant acting out with Appell-nt.

ant's five year-old son Ausbon Jr, which precipitated being con

fronted and checked by Appellant.

5.) Appellant explained in his interview with Detective Henz that

Appellant acted with parental intent,"and the testimony from the

State witness that Appellant was "checking" complainant could be

rationally characterized as supportive of Appellant's explaination.

6.) The trial Court erred in refusing a medical instruction, even th

ough the parent-defendant indicated suspicion of sexaul abuse.

Appellant indicated a medical purpose; he was concerned that com

plainant might even need a shot if she were pregnant.

7.) Detective Henz was incorrect that Appellant lacked support for his

parenting theory, since complainant discussed her acting-out episode

in detail. (APX & 8 ) .

8.) Complainant made various statements that would have been contradicted

by Jennifer White. Complainant did not report abuse to Jennifer did

not see Appellant penetrate complainant with his penis; and Jennifer

and others saw or were present whencomplaint. checked complainant by

looking at her only.

9.) During her forensic interview, Dula asked complainant at two diff

erent points during the interview whether complainant was really

telling the truth. Dula was confused by complainant's inability to

consistently describe two specific events.

10.) Complainant's testimony at trial about "white stuff" was new; she

did not mention anything about white stuff in her forensic inter

view, much less in her statements to any of the State witnesses.

11.) Failed to use complainant's videotape recantation; The video and

a transcript of it also could have been used to confront State wit

nesses for their incomplete and biased investigation. The video

and transcript would have particularly supported a challenge the

forensic interview's claims that she did not express substantial

confusion during her interview of complainant.

INSUFFICIENT lEvV.TiDEiNiCE

12.) Failed to use complainant's forensic interview to demonstrate the

validity of Ape11 ant's concerns about complainant acting-out in a

sexual manner with Appellant's five year-old: son. Yet it was true

that there was a problem with complainant's acting-out which lead to

Appellant examining complainant, as complainant explained in detail

during her forensic interview.

13.) Failure to use the video of her forensic interview and an associated

trancript to show that Appellant's concerns about complainant acting

out were valid was substandard conduct that rendered the outcome un

reliable, in combination with the other vital evidence that was not

presented in Appellant's behalf.

14.) Failed to use complainant's forensic interview to better impeach the

forensic examiner, complainant's explainations were.so confusing and

suspicious that the forensic interviewer, Dula, twice asked whether

thee 1aimed abused "really did happen, ".,

GROUNDS FOR REVIEW

II

INEFFECTIVE ASSISTANCE OF COUNSEL

'c h P (j e j. j. aiu Bxamineo ay a proTessionax menxaj. neaixn

to determine if the Appellant was in fact competent to stand trial.

This Appellant is currently in the determination :of disability program, in

Rusk, TX. This program- is called the (MROP) wn'3'chhstands for Mentally Retard

ed Offender Program. Appellant's intellectual and adaptive functioning level

P \/P 1 '1 «3 Q n T n I.I h T c , -t-T*:-! pi r* n IIr-i e o "I nhnnl A l-i.~»wr-i K f> r-J +• i-. A «

It is the contention of this Appelant that the jury that convicted him was

bias, the appellant argument is there was only one African American on his

jury.

Statement of Case

C o m p 1 a in an t li ved App e 11 a nt in Arl ingt on a nd F ort W orth fo r most

with

of her . 1 i f e . When p 1 a i nant was eigh t ye ars old , she accused her

com

mother 's b oy f r iend of s e x u ally abus ing her . Th e ch arges agains t mother's

b o y f r i end w e r e dro pped bef ore c o m p 1 aina nt t u r n e d ni ne , a nd when complain-

ant wa s te n sh e ma de s i m u 1 ar a c c u s a tion s ag a i n s t Ap p e 11 a nt of s e x u a 11 y

ahusin g he r wh en s he w as n ine and 1 0 . Comp lain ant e x p 1 a i n e d in detail

that s he f alse ly a e c u s ed h er m other 's b oy f r iend at A p p e 1 1 a n t ' s behest.

During an in te rvie w wi th a det ectiv e , A ppel Ian t exp' 1 aine d that there was

a pare ntal pur pose , an d he den ied c ommi ttin g or act ing w i t h sex ual intent

w i t h r e spe ct t o th e ot her alle ged a cts . Ap pell ant argue d that complian-

ant wa s no t cr edib le, sine e he r c 1 i ams c o u 1 d no t fa irly be char acterized

as con si s t ent. Ap pell ant pres ents a de tail ed r ecit ation of the facts

under Poin ts o f er r o r o n e thre w Fou r , w here he chal lenge s the s ufficiency

of the e vi dene e , a nd c 1a im s hi s tri al c ouns el w as i nef f e c t i v e .

SUMMARY OF ARGUMENT

A p p e 1 I ant who was c o m p 1 a i nant 's father, wa s ch arge d with fou r co unts of

s e x u a II y abus ing he r . Th e ev ide nee was in suff i c i e nt to pro v e an y of the

count s un der a rigo ro us a s s e s s m e nt of t he q u a 1 itat ive v a lue of t he ev id-

ence . On e im portan t c o n s ider ati on was tha t co mpl a inant fals ely a c c u s ed

her s tep- f ath er of si mula r se xua 11 y a b u s e two year s earl ier . On anot her

a c c u s atio n c o m p 1 a i n an t ac c u s e d 1 ive-in boy f rie nd o f s i m u lar abus e . C om-

plain ant is a slow le arne r a n d i s in s p eci al e due a t i o n a t he r sc h o o 1 . 5h-

o u 3. d this Cou rt not r e v e r se a nd render jud gmen t of a c q u i ttal wit h res pec t

to so me o r al 1 of t he c o u nts for insuff ici ent of t he evi dene e , i t sho uld

re ver se a nd r emand on any cou nts where it dete rmin es tha t Ap pell ant w as

**(de priv ed o f his ri ght to c o u n s e1 und er the 6th Amendm ent to t he U. S

Const i t u t ion ) . The re v a r ious fa ctors t hat req uire a det ermi nati on of Ob-

j e c t i vely u n r easona bl e co nduc t, and sue h d ef ic ienc ies un derm ined conf id-

ence in t he o u t - c o m e of t he t ria 1 proce edi ngs ash o 1 e , i f pr e jud ice s h o u 1 d

not b e pr e s u m e d due t r i al cou n s e hea rin g im p ad r ment , and the fact this'

A p p e 1 lant is mental iy ret arde d. A p p e 11 ant ass ert s he to Id h is t rial c o u -

nsel he c o u 1 d not r ea d an d wr ite and d i d n ot u nder stand what w a s go in g on

d u r i n g im port ant pa rt s of the tr ial pro cee ding s . The fa ctor in quest ion

i n c 1 u de b ut a re not 1 i m i t ed t o ; trial c oun sel suff eredhe arin g im p a i r m ent

w h i c h , am ong other th ings , ca u s e d him t o e ]. i c i t e.v idence tha t Ap p e 11 a nt

attem pted to i n t i m i da te c ompl a in ant sho rtl y be. f o re trial , an d he fail ed

to ca It av a i 1 a b 1 e w i tn e s s e s to sh ow that he r- te s t im ony wa s in c o r r ect i n

p e r t i nent par t : (co mp lain ant sta ted at tri alt her was wh ite stuf f on the

i n s i d e of her legs, b ut d u r i n g h er fore nsi c in terv i e w s h e di d no t men tion

that impo rtan t fact ). Tr ial c o u nsel fa ile d to use c o m p 1 aint ant ' s vid eo -

taped r e c anta tion ; hi fai led to u s e c o m pla inan t ' s forens ic i nter v i e w to

demon str a te t he va 1 id i ty of A ppe 11 a n t ' s de fens e an d toe stab 1 i s h subs tant

i a 1 q uest ions conce rn ing comp lai nant ' s ere dibi 1 i t y ; and he f a i 1 e d to call

c o m p 1 aina nt s tep- mo ther ( Je nif e r Whit e) to c on tr a d i c t key asse r t i o n s

that comp lainant ma de

RELATIONSHIP AND CHRONOLOGY

Complainant was Appellant's daughter and her mother was Lavondra Draper.

At the time of Appellant's trial in April of 2013, Appellant was 29 years

old, Draper was 27, and complainant, who was from in 2000, was 13. App

ellant and Draper never married, as the State pointed out in its opening

statement. Appellant and Dr a;} ar conceived comp lai. nant when Draper waa

13 years old. (Jenifer White is Appellant's grilfrind).

RELATIONSHIP AND CHRONOLOGY

(continued)

Complainant lived with Appellant until 200B, when she and her

younger sister, Ashanti, went to live with Draper, who was living with

her boyfriend, Ronnie Randies, and with thir daughter, Jae'niya. App

ellant re-assumed custody of complainant and Ashanti after complainant

accused Randies of sexually abusing her. The charges against Randies

were dismissed in September of 2008. (RR5: 112-13, 116-18, 121, 124).

In the spring of 2010, complainant alleged that Appellant penetrated her

sexual organ with his penis and during a December 2010 investigation of

physical abuse against complianant by Draper's new live-in boyfriend,

Demarcus Carter, complainant said that Appellant's abuse against her

included digital penetration. During complainant's teatimony at Appell

ant's trial, complainant to Id. the jury that Appellant also sexually ab

used her in ways that did not included penetration. (RR4: 51-53).

Evidence i n D D b t:ai 1

Com_.plai.nant accused her mother's boyfriend of sexually abuse in

2008, but the charges were dismissed.

Kim D'Avignon was a Tarrant County prosecutor who was assigned to

prosecute Ronnie Randies,Draper's live-in boyfriend, for sexually abusing

complainant in 2008. (RR5: 111, 123). Based on testimony from a Child

Protective Services investigator, there was a 95 percent chance that the

allegations were true, since Child Protective Service evidently would have

found that there was reason to believe complainant; was forensically in

terviewed by Lindsey Dula, who had done over 6,000 interviews, * includ

ing the forensic interview of this Appellant who was convicted of the

same accusations conducted by the same Child Protective Service Lindsey

Dula. Lindsey Dula should have excused her self from the case at Bar in

regards to conflict of interest issues.

Kim D'Avignon decided to dismiss the charges against Randies, considering

three factor: 1) complainant was not credible, 2) Appellant did not re-

spon to messages,, which was not how a victim's parent norma 11y acted, and

3)Randies was going to be incarcerated pursuant to a plea bargain for a

bueglary offense. (RR5: 112-13, 116-18, 121-125).

Complainant is a slow learner and- is easily mislead into beliving

what someone coaches her to say as was done in the forensic interview

conducted by Child Protective Service Lindsey Dula who had already done

an forensic interview in the (Ronnie Randies Case, * which was a conflict

of interest due the fact "Dula" testified against Appellant of the same

abuse just afew year before conducting simular forensic interview against

Appellant Case at bar.

*Draper took complainant to the hospital, where they said nothing was

wrong with complainant, except she had some white stuff on her, as com

plainant told the jut y. (RR'4: 46--48). During complainant's forensic

interview she did not mention this speific detail concerning white stuff

found on her,? as r. complainant explained during her testimony to the jury.

5"

Evidence in Detail; :

(continued)

Appellant explained to Detective Henz that Appellant checked com

plainant after her five year old brother,said that complainant made him

put his no-no inside of her. (RR4: 92-93, 101; SX-2: 12:41:00).

Detective Henzto1d the jury that he reviewed the videotape of complain

ant's forensic interview, which was not shown to the jury, but he omitt

ed that complainant went into detail about the day when Jennifer White

found complainant act:.ng out with Appellant's five-year-old son, Ausbon

Jr, which precipitated complainant being confronted and checked by App

ellant. (RR5: 95, 101; RR7: 8-9; DX^3: 21-25, 34, 41-42; DX-4). Jennifer

white is Appellant's mother with son Ausbon Jr., and was present when

Appellant check com piainant. It can be said beyond a resaonable fact

that Appellant had a parental purposes in checking his daughter after

learning these very important facts concerning his daughter and son.

STANDARD OF REVIEW

n re view the suffic i e n c y of the ev idence this Court cons ider s all

of the e vi dene e in the 1 i ghtmo st f avorab 1 e to the ve r d i c t to de term ine

whethe r an y ra tion a1 trie r of fact r e 1 y i ng on the ev idence and reas on ab 1 e

infere nee s to be d rawn fr om th e e v idence could have found the e ssen tial

elemen ts o f th e cr ime bey ond a rea s o n ab 1e d o u b t . Jac kson v . Vir gj-ni a 443

U.S. 3 07, 31 8- 1 9 ( 1979); Brook s v . State , 323 S.W.3d 893, 894 ( Tex Crim

App. 2 01 0) . Un der Brooks , this Cou rt sho uld co nduct a rigo r o u s lega 1 su-

f f i c i e ncy revi ew t hat qua 1 i t y o f the e v i d e n ce th at w as

foe uses on t he

presen ted. Br ooks , 323 S .W3d at 9 1 7-1 B (Cochr an J . , c o n c u rring ) . W hile

this C ourt sho uld g i v e d e feren ce t o the respon s i b i 1 i ty of the j ury to

fairly res ol ve con f 1 i c t s in te stim ony , t o weig h the eviden ce , a nd t o dr-

aw rea s o n a ble inf e r e n c e s from basi c fact s to u 11 i m a t e fact s , th is C ourt

should r e m ain mind ful tha t leg al s u f f i c i ency i s j u d g ed by the q u a 1 i ty of

the e v iden ce a nd b y the 1 e vel of c ertain ity th at the e v i d e n e e e ngen ders

in the f ac t fi nder ' s mind . Br ooks , 323 5 .W.3d at 91 5 (Coc hran , J., c o n -

currin g); see Hoop er v . 5 tate , 21 4 S.W.3 d 9, 1 3 (Tex . Crim . App . 2007 ),

citing Jac kson , 44 3 U.S. at 31 B-1 9

Under Malik v . 5t ate , this Court measures the sufficiency of the ev-

idence by the e1e ment s of the offense as defined by the hypothetically

correct ju ry char ge f or the ca s e. Mai ik v. State, 953 S.W.2d 234 (Tex.

Crim. 1997) .

Aoo . A hypotheti c a 11 y c orrect charge is one that accuate-

1y sets o u t the 1 aw , is author ized by the indictment, does not unnece-

ssarily in c r e a s e the S t a t ' s b u rden of proof or unnecessarily restrict

the State ' s theor ies of 1i a b i1 ity, ad equately describes the particular

offense fo r which the defendan t was t ried, and takes into account t,other

relevant f actors . Su ch a stan dard en sures thata judgment of acquittal

is rendere d when ther e is an a ctual f ailure in the State's proof of the

crdime rath er that a m e r e e r r o r in the jury charge submitted,

In A p p e11 ant's c ase , the Stat e a 11 e g ed that Appellant acted knowingly

and intent i o n a 11 y , rev e n r t h o u g h the of fense can be committed by mere rec-

kless cond u c t . S ee T ex. Penal Code 2204(f) (providing that injury to

a child is a stat e ja il offens e if co mmitted recklessly and is a thrid

degree off ense if com m i 11 e d i n tention ally or knowingly). While the ev-

idence ind icated that have acted recklessly with respect

A p p e 11 a n t might

to the res uIt in putt ing his f i n g e r i nside of complainant, especially

when he ha d f i n g e rnai Is that m i g h t s c ratch her, the quality of the e v -

idence was i n s u f f icie nt to eng ender a level of certainty that Appellant

had any in tent in c a u se bodily injury

STANDARD OF REVIEW

(continued)

In Appellant's case, the State alleged that Appellant acted knowing

ly and intentionally, even though the offense can be committed by mere

reckless conduct.

The evidence was insufficient to support the conviction for digital

penetration because there was no rational basis for concluding that

Appellant inserted his finger.

A pers on c ommi ts agg ravate d sexual a s s a u It o f a child if he inte ntion ally

or kno wing lyd i g i t a 1 1 y pen etrates the se xual org an of a c h i 1 d y o unger than

fourte en y e a r s of ag e . Te x . Penal Code 22. 021 ( a)(1 )( B ) ( i ) . Ac cordi ng to

C o u n t One , App e 11 a n t inser ted his finger. int O CO m p 1 a i n ant's f ema le se x u a 1

organ on o r ab out Ju ly 29, 2009. A p p e 11 ant r e c o gnizes that cred i b i 11 y

choice s an d in ferenc es gen e r a 11 y r eside with in t he rea Im of juro r dis c r e

tion, but Appe 11 a n t respec t f u 11 y s ubmits tha t th e e v i d ence , when judg ed

accord ing to i t s qua 1 i t a t i ve facto rs , wa s in suff i c i e n t to su ppor t a r at-

iona1 cone 1 u s i on tha t he i nserted his f i nger int o comp 1 a i n t ' s se x ua1 or -

gan . Broo ks , 323 t 91 5 (C ochran , J. , co ncurri ng) .

S . W.3d a Comp 1 a i n a nt

told t he j ury there w e r e o n1y two instan tanc es o f pene tratio n : p enile

vagina 1 pe netr ation on the Chuck E . Chee se d ay i n Fort Worth and d i g i tal

penetr atio n wh en she lived with A p p e 11 a n t in Arl i n g t o n Com p 1 a i nant told

Kynnis ha W arre n , tha t Appe 11 ant us ed his pen is,, C o m p 1 ainant tol d :• C P S In-

vestig a tor Hen derson that Appellan t only use d hi s f i n g er . C ompl ainan t

told t he f oren sic in tervie w e r, Lin dsey D u 1 a , tha t the Chuck E. C heese day

involv ed p e n i 1 e pene tratio n . Comp lainan t fo c u s e d on d i g i t a 1 pen etrat ion

on the Chu ck E . Chee se day i n talk i n g w i th S ANE; c o m p 1 ainant c o n f i r m e d

penile pen etra tion w i t h o u t elebora ting .

Moreover, there were also questions about complainant's general tru

thfulness, 'considering her admittedly false accusations against Ronnie

Randies case. E§Mri ;iif.ftfreinacousiatiidnyagainst Randies were true, the Ran

dies factor favored Appellant. Considering that complainant's claims ag

ainst Randies survived the 95 percent-certain screening process, the rat

ional conclusion was that they were true.(See factual background)

The evidence was insufficient to support the conviction for digital

penetration because Appellant had a parental purpose.

Assuming that the evidence were sufficie nt to e s ta b.lish tha t Ap pell--

ant inserted his finger, Detective H enz ' tes ti mony s ti 11 in dica ted that

Appellant admitted the conduct, whic h did no t invo Ive hi s s e x u a 1 or gan or

mouth, and stated that he acted with "parent al int ent" Un der thos e cir-

cumstances, Appellant was qualified for a me di cal care def e nse inst ruction

Tex. Penal Code 22.011(d); 22.021( d); Corn et v . Stat e , 35 9 S. W.3d 21 7,

222 (Tex.Crim.App . 2012). In Cornet , the Co u r t of Cri minal App eals held

that the trial court erred in refusi ng a med ic al c are instr ucti on , even

though the parent-defendant.did not ing, when the par-

have med ic alt rain

ent-defendant indicated suspicion of sexual ab use . Ap p e 11 a nt i ndic ated

a medical purpose; he was concerned that cam Pi aina nt m ight e v e n nee d a

shot if she were pregnant. (RR4: 93; S X - 2 : 1 2 : 41 :0 0). This Cou rt s h o u 1 d

f i n d "':• t h a t evidence was insufficient to show di gita 1 pe netra tion , e v en

though Appellant did not request the instruc ti on , beca use a hyp othe t i c a 11 y

correct jury charge would have inclu ded the in s tru ctio n , an d a rati onal

jury would have found that Appellant did not a ct w ith a med ical pur pose .

Malik, 953 S.W.2d at 240 & 240 n. 5. The Ap pe 11 a n t is cons ider ed t o be a

Mentally Retarded Offender and could not pos si. bly know n wha t a medi cal

care instruction meant in legal ter ms .

1

STANDARD OF REVIEW

(continued)

Under the unique circumstances in Appellant's case, the evi dence was

insufficient to show that Appellant was not acti.ng with parental intent,

as Appellant explained. Jackson, 443 U.S. at 318-19. To be sure, as

demonstrated Appellant would have qualified for a medical care defense

instruction in the context of an allegation of digital penetration.

Pursuant to its rigorous qualitative evaluation of the record, this Court

should conclude that a rational jury could not have concluded that App

ellant acted with intent to arouse and gratify his sexual desire.' Brooks

323 S.W.3d at 915.

APPELLANT WAS DEPRIVED OF HIS SIX AMENDMENT RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL WITH RESPECT TO HIS TRIAL ON GUILTY OR INNOCENCE

AS TO AGGRAVATED SEXUAL ASSAULT BY DIGITAL PENETRATION ALLEGED IN COUNT

ONE THRU FOUR

Appellant demonstrates in Points of Error One-Four that he was depri. -

ved of the effective assisance of counsel in connect].on with his defense

on each count as to guilty or innocence. Appellant discusses Points of

Error One-Four togather, since they involve a common nexus of fact and

law .

:DDITIDNALTF5CTS

ADDITIONAL FACTS

Tri. al counsel had congestion in his Eustachian tubes during trial,

whi.ch caused him to experiece hearing problems. (RR3: 9B, 104, 123, 125,

127, 129; RR4: 13-15, 39, 52, 56, 62, 64, 67, 71, 101, 104, 121, 126;

RR5: 20-21, 43, 57, 59-60, 90, 96, 98, 121, 135, 137-38; RR6: 14,20, 23-

24, 41, 44, 52, 57; RR7: 9, 13-15, 18-19, 31, 36-37, 39, 46, 48). Trial

counsel believed that his poor hearing "probably" affected his perform

ance. (RR7 : 13-14) .

The record demonstrates:

* Trial counsel had trouble hearing' prospective jurors, and he re

quired c1arifications from the tri.al court in exercising his

strikes. (RR4: 13-14, 39,47, 50, 52, 64-65, 68-70; RR5: 131; RR7:

1 3-14) .

Trial counselhad substantial difficulty in hearing the testimony;

he "wasn't really sure that I knew exactly what [witness] were

saying, ":even after they repeated their responses to his question;

ions. (RR4: 13-14, 39, 47, 50, 52, 64-65, 68-70; RR5: 131; RR7:

1 3-1 4) .

?

SIX AMENDMERNT RIGHT TO COUNSEL

(continued)

ADDITITIONAL FACTS

* Trial counsel spent much of hi s cross-examination time simply con

firming testimony given by the State's witnesses. The problem was

evident during his cross-examination of the Sexual Assault Nurse

Examiner and of the CPS investigator, Jerald Henderson and Britt-

ney Payton. (RR4: 120-26; RR5 : 19-21, 57-60).

* Trial counsel evidently did not hear Detective Henz mention Appe

llant's explaination that complainant was acting-out, which Detect

ive Henz considered to be questionable. Trial counsel did not cl

arify that complainant went into detail during her forensic inter

view, about her acting-out with Appellant's five- year-old son.

Trial counsel did not challenge Dective Henz' suggestion about the

absence of support for Appellant's explaination as misleading, since

Dective Henz reviewed the forensic videotape. (RR4: 106; RR5: 95,

101; RR7: B-9; DX-3: 21-25, 34, 41-42; DX-4; APX$B).

* Trial counsel had trouble hearing "anything" that the soft-spoken

complaonant said; for example, he misunderstood complainant to say

that she did not make allegations against Roonie Randies. (RR4: 13-

1 4, 39, 47, 50, 56; RR5: 131 ) .

* Tri.al counsel's inability to hearing complainant evidently contri

buted to his unintentional elicitation of testimony from complain

ant that Appellant went to look for her at her school during the

week or two before trial, i.e., that Appellant was attempting to

intimidate her or to otherwise influence her testimony. (RR4: 39,

52, 64-65, 6B-70). Trial counsel testifed at the motion for new

trial hearing that he asked.about Appellant going to complainant's

school in order to prevent the State from asking the quest:.on, but

the record shows that the State had already completed its direct

examination. (RR4: 59, 65-68; RR7: 25).

* Trial counsel did not offer available testimony from the cousins

to demonstrate the falsity of complainant's testimony about seeing

Appellant at her school. (CR: 676-80; RR7: B;)T": "

* Trial counsel had substantial trouble understanding the names of

complainant's cousin-schoolmates during complainant's testimony

E'eveh though trial counsel used their names, but not not his hea

ring troubles , in support of a continuance motion that he filed

the week before. (CR: 543-44; RR4: 71).

* Trial counsel's inability to hear might have been related to his

not challenging the testimony that a finding of reason to believe

~--~"r- CPS means that the investigator is 95 percent sure. (RR7: 15-17).

If counsel had objected, he would have urged that the testimony was

overly prejudice. (RR7: 17).

His hearing impairment aside, trial counsel was hesitant to use her

statements from her forensic interview, even though trial counsel believed

that her testimony was "not the same." ( R R 7 :2 2 ) . Trial counsel did not want

to use complainant's inconsistent statements to support his theory, or to

impeach her, for fear of "badgering." (RR7: 22-23).

<?

SIX AMENDMENT RIGHT TO COUNSEL

(continued)

ADDITITIONAL FACTS

Trial counsel chose not to use complainant's interview to illustrate:

* Tri.al counseldid not recall if complainant mentioned in her for

ensic interview that Appellant manipulated her into a c fc>i n g Randies.

The videotape demonstrated that complainant did not unambiguously

disavow her allegations agai.nst Randies. At a certain point, com

plainant confirmed that Randies put his stuff in her, and she said

that complainant's mother caught him. Trial counsel did not beli

eve that there was value in showing that complainant was truthful,

with respect to Randies, since showing that Appellant did not co

ach complaiant "doe.s not mean that it did'nt happen" with Appellant

(RR7:2B-29;APX^!fl).

* Dective Henz was incorrect that Appellant lacked support for his

parenting theory, since complainant discussed her acting-out ep

isode in detail. APX C'B )•

* Complainant made various statements that would have been contrad

icted by Jennifer White; Complainant di.d not report abuse to

Jennifer; Jennifer did not see Appellant penetrate complainant

with his penis; and Jennifer and others saw or were present when,

complainant checked complainant by look:.ng at her only. (RR7 :8•;

RR8: DX-2)

Tri.al counsel also cross-examined Dula about Dul a's 2008 interview with

complainant regarding Ronnie Randies. (RR3: 103). Dula conceded that

complainant alleged penile-vaginal penetration with respect to Randies,

the same as complainant alleged with respect to Appellant. (RR5: 105). >

Dula also conceded that complainant was very detai 1 -oriented concern:.ng

the sensory and peripheral details involving the Randies abuse, and Dula

agreed that a child that was coached would not be able to provide sen

sory and peripheral detail. (RR5: 86, 105-07).

* Trial counsel did not have Draper interviewed to determine if she,

like Jennifer, would have denied complainant was really telling

the truth. (APX «JftJ1 2-1 3) . Complainant never complied with Dula 's

request for her to explain whether Appellant came''downstairs na

ked as the only time when Appellant put his privacy inside com

plainant or whether it was Jennifer walked in. APX ^ 1!3) . Diila's

testimony that complainant was "very consistent" was leading. (RR5

81-B3, 89).

* The two instances of abuse that complainant deeribed contradicted,

her testimony. During her forensic interview, complainant told

Dula, the interviewer, that Appellant put his privacy part into'

complainant to "check" her in the living roon in the house in Fo-'

rt Worth in 2009, which was witnessed by Jennifer White, and she

said that Appellant put his finger inside of her in 2010 in the

living room in the Fort Worth house before they went to a party

at Chuck E . Cheese (RR5: 80-B7; APX <^3-4, 6-13). Complainant

told the jury that the abusive acts were penile-vaginal penetrat-

ion on the Chuck E Cheese day and penile penetration at their'

house in Arlington in 2009. (RR4: 26-50) .

10

SIX AMENDMENT RIGHT TO COUNSEL

(continuued)

Addititional Facts

* Complainant's testimony at trial about, "white stuff" was new; she

did not mention anything about white stuff in her forensic interview,

much less in her statements to any of the State witnesses. Trial

counsel decided not to address the inconsistency, because it was

too graphic. (APX; RR4: 46; RR7: 31; APX). ,

Counsel did not recall the specific reasoning for not having Jennifer

White testify that she did not see Appellant penetrating complainant m:

with his penis, as complainant alleged , but counsel chose not to call

Jennifer, because he decided, after discussing it with Appellant, that

it would have been counterproductive. (RR7: 25-26, 44-45).

Ins tead , tr ial co u n s e 1 con duct ed a lim i ted c r o s s - e x a m:. nati on of

comp lain ant , whi ch bro ught out all the inco nsis tenc ies that he could

thin k of wit hout appea ring to b e ba dger ing . (RR 7: 2 2-23 ). Coun s e 1 be -

1 i e v ed t hat aski ng too man y • spe c i f i cs m ight be a mi spla ced appr oach ,

sine e co mpla inan t dido not appea r to und erst and spec i f:. c s ve ry w ell.

(RR7 : 24 ). Coun s e 1 o b tain ed an add miss ion from c o m plai nant tha t corn-

p 1 a i nant was unt r u t h f u 1 in a co n ver sati on w ith her Aunt Lam e sha when

comp lain ant deni ed tha t Ap p e 11 a nt h ad b een to h e r s choo i; c ompl ainant

said it was okay to li e so m e t i m e s , if n eed be . (RR 4: 7 3). Com plainant

also tes tifi ed t hat sh e ne ver t old lies , ex cep t she agr eed that she

got into tro u b 1 e for t e 11 i ng th e po lice tha t Ra ndle s to uche d he r , since

he w as i n ja il at the time . RR4 : 60 ). Comp lain ant deni ed t hat she ch-

ange d he r s t ory on Feb ruar y 6, 201 2 to say that App e 11 a nt nly checked

o

her with hi s fin ger , a nd t hat h e on ly d id i t on ce . (RR4 : 63 , 65 -67) .

Comp lain ant reit erated tha t her tes timo ny w as t hat Appe llan t to uched

her with " [h ]is p r i v a t par t and his han d." (RR4 :63)

Trial counsel also cited badgering-type concerns in explaining his

reasons for not using a videotape taken in a school cafeteria in 2010

or 2011 wherein complainant recanted all of her allegations against App-

ellaht. (RR7: 7; 10; RRB: DX-2: Attachments 1-2, 9). Trial counsel was

concerned that use of the cafeteria video might have been counterprod

uctive. Trial counsel did not make a final decision not to the video

until trial. Trial counsel did not bring the videotape to trial, but

he denied the suggestion that he could have used it if he wanted to.

(RR7: 10, 43; RRB: DX-2 Attachment 2: 6-7 Attachment #: 5-6). The

Cafeteria Video would have shown complainant answering questions in part

as follows:

~ Q. ...But like I was saying your - your daddy said he missed y'all,

and so I told - you - what you was telling me that - did you -

did you say he did anything?,

A . No .

[J§ He didn't do nothing to you?

A. Huh -uh .

Q. Promise?

n

SIX AMENDMENT RIGHT TO COUNSEL

(continued)

A. I promise.

Q. Oh, okay. So he didn't - oh, me and my mouth. Get close so I can

whisper to you. So he - so he didn't touch you or nothing?

A. (Moving head side to side.)

Q. Huh?

A. (Moving head side to side.)

Q. Oh, okay. So why do people say that ? They just probably trying to

make you not be with your f ami1y .

A. I don't know. Now, a lady had asked me - she had ask me what my

daddy did "cause she didn't know about him.

Q. Uh-huh.

A. But that lady was just - that lady was just asking me something -

Q. Uh-hnh.:

A. --and I was lik, no, (inaudible). And then that's when we had to

leave and I had to go back to the boy's dress club. And then -

Q. But you didn't tell her that he -

A. Huh-ah.

Q. Oh. Okay. "Cause I"m like why would he do that and -

A. (Shrugging shoulders).

Q. That's crazy. They just - and I"m like he - I"m like he - they've

been staying with their daddy forever. When your mamma was over the

road, I mean, y'all was staying with y'all daddy, right?

A. (Moving head up and down).

Q. Yeah. So your daddy didn't touch you nowhere?

A. (Moving head side to side).

RR8: DX-2: Attachment 1).

Trial counsel testified that he di.d not object to the State using

various hearsay under the outcry exception to hearsay because he would

only object in front of the jury when he really needed to, although he

did not recall making a specific dec:, si on not to object about overuse

of the outcry exception. (RR7: 17-20).

U

SIX AMENDMENT RIGHT TO COUNSEL

(continued)

The jury charge does not include any medical defense instructions,

although in his closing argument, trial counsel ur ged that Appellant

made a parenting decision when he looked at complainant's sexual organ.

(CR: 5B8-604; RR5: 129, 140). Trial counsel urged that complainant was

not credible because the suspiciousness of complainant using language

about "rape" in her outcry to her teacher, the falsity of the claim that

complainant made against Randies, and her use of falsity in avoiding a

discussion with family members about Appellant going to complainant's

school. (RR5: 135-41). Trial counsel told the jury that he was "not go

ing to try to convince you of the many things that I've seen that are

inconsistent.' (RR5: 140). Trial counsel's intent in final argument

would have been to show inconsistency in the allegations and bring out

the evidence that best favored Appellant. (RR7: 32).

STANDARD OF REVIEW

INEFFECTIVE ASSISTANCE OF COUNSEL

Th:.s Court reviews a challenge to the denial of Appellant's motion

for new trial based on effective assistance under an abuse of discretion

standard, reversing "only if the trial judge's opinon was clearly err-

onous and arbitrary." Riley v. State, 378 S.W.3d 453,457 (Tex .Crim .App.

2012). This Court views the evidence in the light most favorable to the

trial court's ruling; it must not substitute its judgment for that of the

trial court; and it must uphold the ruling if it was within the zone of

reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.

App. 2004). If there are two permissible views of the evidence, the fa

ctfinder's choice between them cannot be clearly erroneous. Riley, 378

S.W.3d at 457. Thus, a trial court abuses its discretion in denying a

mot:.on for new tri.al only when no reasonable view of the record could

support its ruling. Webbv. State, 232 S.W.3d 109, 112 (Tex.Crim-.App.

2007) .

In applying the abuse of discretion standard, this Court should re

main mindful that the focus of Appellate review of an effective assist

ance cla:.m is the objective reasonableness of counsel's actual conduct in

light of the evidence of the entire record. Andrews v. State 159 5.W.3d

9B, 101 (Tex.Crim.App. 2005). When no reasonable trial stategy could

justify his conduct, counsel's performance falls below an objective st

andard of reasonableness as a matter of law. Lopez v. State, 343 S.W.

3d 137, 143 (Tex.Crim.App. 2011 );Andrews , 159 S.W.3d at 102.

EVALUATING INEFFECTIVE ASSISTANCE

To prevail on a claim of ineffective assistance of counsel, an App

ellant must show that (1) counsel's performance fell below an objective

standard of reasonableness and (2) but for counsel's unprofessional err

or, there is a reasonable prebability that,the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668,669,

104 S. Ct. 2052, 2055-56, 80 L. Ed. 2d 674 (1984); Mitchell v. State 68

S.W.3d 640, 642 (Tex.Crim. App . 2002). A defendant has the burden to est

ablish both prongs by a preponderance of the evidence; failure to make a

show:.ng under ei.ther prong defeats a claim for ineffective assistance.

Mitchell, 68 S.W.3d at 642.

13

INEFFECTIVE ASSISANCE OF COUNSEL

EVALUATING INEFFECTIVE ASSISTANCE

suffered hearing impairment,

Tri a 1 co unsel had a d uty to e ffec tuate Appe 11 an t 's right s to cou nsel

and to ha ve e ff ect ive as si stan ce o f co unsel. Tr ial coun sel n eede d to he-

ar t he st a tern ents of t he c ourt , th e St ate , the pros pect ive j uror s an d the

witn esses in order to f unc tion as coun se1 w i thin the mea ning of t he S ixth

Amen dment . Bu rdine , 26 2 F. 3d at 34 9 (h o 1 d i n g tha t tr ial couns el's pos tpra-

dial naps did not unde rmin e th e ri ght to cou nsel bee ause ther e wa s a se-

cond -chai r de f ense att orne y). It woul d have bee n an a b u se of dis cret ion

for the tria1 cour t to den y a prop er c ontinu a n c e mot ion demon stra ting su-

ffic ien t caus e . I n Ap pell ant ' s ca se t here w as n o r e ason able s tra tegi c

basi s in tri a 1 cou nsel dec idin g no t to seek a co ntin uanc e bas e d o n hi s

hear ing i mpai rment . C on si deri ng t he e ntiret y of the cir cumst ance s , c o-

unse 1 's p erf o rmanc e

in fai ling to seek a con tinu ance fel 1 bel ow a n ob

ject ive s tand ard o f re ason able n e s s as a matt er o f la w . s e e A1 dric h v .

Stat e, 29 6 S. W.3d 225 , 245 , 24 9 (T ex . A pp .) . Sin ce t rial c o u n sel ob je ct-

i v e 1 y unr e a s o nable det ermi nati on t o f o rgo a con t i n u a nee reque st d irec tly

unde r m i n e d Ap p e 11 a nt ' s rig ht t o co u n s e 1, the r e s ult of t he pr o c e e ding

cann ot be e r e d i t e d as reli a b le , an d th is Cou rt s h o u 1 d pr e s u m e tha t th e

erro r aff ecte d the out c o m e , in sat isf a ction of t he s e c o n d pro ng o f St r-

ickl and . Stri c k 1 a n d,-4 66 U .S. at 6 92; Cronic , 46 6 U . S. a t 654 B urdi ne ,

262 F.3d at 3 49. As n ote d in Burd ine, a law yer who cann ot li s ten can

not repre sent Bu rdin e 26 2 F. 3d at 34 9. Mo reo v er , ther woul d be '" har m

from deni al of the con tin u ance mot ion , and t he S trie klan d pre j u d i ce p r-

ong would be satis fied , si n e e the reco rd ref lect s an aba ndanc e wh ere tr-

ial couns el's hear ing affe cted the rep resent atio n to the exte nt t hat con-

fide nee i n th e out c o m e is unde rmin ed d ue to the heig hten ed pr obab i ]. i t y

of a diff eren t out c o m e

failed to use complainat's videotaped recantation,

Trial coun sel m ay m ake strat egic dec :. s i o n s as to wh e the r an d how

to c r o s s - e x amine witn esse s , a nd it i s vali d to take conce rns into acc-

ount about alien ating the jur y . C oble v . State , 50 1 S.W. • 2d 344 , 346.

Comp lainant shou Id ha ve b een impea che d wit h her rec antati on i n Ap pell-

ant ' s case under a s e n a r i o th at wa s si m i 1 a r to the situat ion in E verage ,

B93 S .W .3d at 22 1 -23. A tran cri.pt cou Id h a ve b een pre par ed t o ma ke the «

impe achment effi cient , an d to miti gate cou nsel ' s c o n.c e m s abo ut lienating

a

that jury , was o b j ect i v e 1 y un r e a s o nabl e co nside ring the c ej>tr alit y of the

reca ntation . Th e vid eo a nd t ransc ript of it a1 so c ould ,h a ve been used to

conf root th e Sta te wi tnes ses for t heir o m p 1 e te a nd bia sed in ve s t i g a t -

inc

ion . The video and tran scri pt wo u.l d have part ic.ul arly s uppo r ted a ch -

a 11 e nge the fore nsic inte rvie wer ' s cla ims that she did no t ex pres s s u b -

stan t i a 1 co nf usi on du ring her inte rv i e w of comp lain ant. Sine e th ere was

a su b sta nt i a1 q u estio n ab out wheth er t he j ury w ou1d have acqu itte d if it

knew about the r ecant atio n , w hich s ati sf ie d the sec ond pr ong of S trickland

failed to use complainant's forensic interview to demonstrate the validity

of complainant's concerns about complainant acting out,

Yet it was true that there was a problem-with complainant acting-out

wi.th Appellant's son, which lead to Appellant examining complainant, as

complainant explained in detai1 during her forensic interview.

J1

INEFFECTIVE OF COUNSEL

(continued)

STANDARD OF REVIEW

FAILED TO USE COMPLAINANT"S forensic interview to better impeach

complainant,

Similarly, it was not objectively reasonable for counsel not to

specifically confront complaiant about the basic differences between

her testimony and her statements during the forensic interview.

failed to use complainant's forensic interview to better impeac

the forensic examiner,

As already noted, complainant explainations were so confusing and

suspicious that the forensic interviewer, Dula,. twice asked whether

the claimed abused "really did happen," yet Dula told the jury that

she perceived that complainant's statements were consistent.

Allowed the State to abuse the outcry exception,

Jennifer Whi.te was the outcry witness with respect to the vaginal

and penile penetration, according to complainant's statements during

her forensic interview, and Jennifer was also involved in responding

to the touching in the house in Arlington, according to complainant's

testimony.

failed to obtain a medical defense instruction.

Appellant's theory was that he acted only to the extent of con

cern for complainant's well-being, which thus limited his viewing her

sexual organ without any touching. Appellant was eligible for a med

ical defense instruction. Cornet, 359 S.W.3d at 222; Tex.Crim.App. 1999)

CONCLUSION

Under a Strickland analysis considering all of the factors

raised, this Court should determine that substandard conduct was rend

ered and that Appellant is entitled to reversal bacause prejudice is

presumed and because there is reasonable probability that the outcome

would have been different but for the unprefessional errors. The evid

ence against Appellant was weak to beg:.n with, due to complainant's

false allegations against Randies, and if her accusation against Randies

were considered truthful, the State case might be even weaker, since

Appellant would not have coered complainant under that scenario. Since

the State's weak evidence would have been substantially weakened if

trial counsel had rendered effective representation in the specified

ways, this Court should conclude that Appellant has met both prongs of

Strickland.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

will sustain Points of error in regards to One thru Four, reverse the

conviction and render judgment of acquittal as the Court deem apptoper;

iate under these circumstance in Appellants arguments. Appellant fur

ther prays for this case to be remanded for a new trial. Appellant

praysfor any such relief he may be entitled. Respectfully submitted

IS~

^;

/S^S^^A^cJlJy J^uJ^d

APPENDIX-ONE

BRIEF FOR APPELLANT

Ausbon Osborne v. State

Summary of December 22, 2010 Forensic Interview

(OF Complainant)

PRAYER FOR RELIEF

For the reasons stated above, it is respcetfully submitted that

the Court of Criminal Appeals of Texass should grant this Petition for

Discretionary Review.

Respectfully submitted,

AUSBON OSBORNE

T.D.C.J.#1B5381 7

379 FM 2972 W

Rusk, Texas 757B5

EXHIBIT/APPEN'DIX.

. Brief for Appellant

Ausbon Osborne V. State, Appeal (CSiminal Court of Appeals)

Summary of December 22, 2010 Forensic interview

ATTACHED AS APPENDIX-ONE

CERTIFTCATE'.'OR iSERVICE ••

The undersigned Appellant hereby certifies that a true and;correct

copy of the foregoing Petition for Discretionary Review has been mailed

U.S. mail, to the Office of the Criminal District Attorney for Tarrant,

County, (Fort Worth TX)

,DN THE p*} D OF

201 5 (JU

(APPELLANT/DATE)

APPENDIX ONE

Brief for Appellant

Ausbon Osborne v. State, Appeal No. 07-13-00156-CR

Summary of December 22,2010 Forensic Interview

1. At the beginning of complainant's hour-long December 22, 2010 forensic

interview with Lindsey Dula, Complainant said that she remembered being

interviewed at the Alliance for Children about her step-daddy sexually

abusing her; it was "about another story, what happened," not about "this

story." (DX-3: 1; DX-4). Towards the end of the December 22, 2010

interview, complainant stated that, when she was eight years old, her step-

daddy "put his stuff - he put his stuff in me like my daddy got - he put his

stuff up in me...like my daddy did and it hurt." (DX-3: 52-53; DX-4).

Complainant also stated that her step-daddy was "just pretending like he was

going to do me like that but he didn't do - he didn't put it in me and stuff,"

but she added that her mother, Lavondra Draper, "catched him. Then I had

told her and she said, okay, I'm going to call the police. He was in jail for a

long time and then he got out yesterday. (DX-3: 52-53; DX-4).

2. At the beginning and end of complainant's interview with Dula on

December 22, 2010, Dula confirmed that complainant understood that the

interview that time would be about "daddy" and not about Ronnie Randies.

(DX-3: 1, 5, 14, 52, 60; DX-4). Complainant also understood that there

would be a audio-video recording to show "are we doing bad things or doing

right things." (DX-3: 1, 5, 14; DX-4).

3. When Dula asked complainant to talk about Appellant, complainant said that

complainant went to a party at Chuck E. Cheese's that was for complainant's

niece. (DX-3: 13, 44; DX-4). Appellant drove complainant and

complainant's two younger sisters from Appellant's house to the party.

(DX-3: 13; DX-4). The children were in the car ready to go, but Appellant

called complainant back into his house. (DX-3: 13, 46; DX-4). When

complainant went inside, Appellant told her to give him a kiss on his lips,

which she did. (DX-3: 43-45). Appellant then asked her to go upstairs and

find him a black shirt or another clean shirt. (DX-3: 13; DX-4).

Complainant brought a black shirt downstairs to Appellant who was in the

living room. (DX-3: 13, 20; DX-4). Appellant then told complainant to pull

75

her pants and panties down so he could "check" her. (DX-3: 13, 20, 44, 46-

47; DX-4). Complainant was scared to pull her pants down, but she did

when Appellant said that he was fixing to get an extension cord implying he

would hit her with it. (DX-3: 47; DX-4). Complainant told Dula that

Appellant "stuck his finger up me" when he "checked" her "privacy part,"

which she uses to pee not to poop. (DX-3: 13, 15-16, 44, 47; DX-4).

Complainant told Appellant that it "hurt." (DX-3: 13; DX-4). Complainant

told Dula that Appellant said that it hurt because complainant had "been

doing something with a boy or something." (DX-3: 13; DX-4).

Complainant told Dula that Appellant said that it would not hurt if she had

not been doing anything with a boy. (DX-3: 13-14, 47; DX-4).

4. Complainant indicated that she told Jennifer White, her stepmother, that

Appellant put his finger inside of complainant before he took her and her

siblings to Chuck E. Cheese. (DX-3: 46-48, 47; DX-4). Complainant

reported to Dula that complainant told Jennifer about the Chuck E. Cheese

incident even though Appellant told her not to tell anybody, although

complainant later clarified that Appellant "didn't tell me don't tell nobody."

(DX-3: 48, 60; DX-4). Complainant told Dula that complainant told Jennifer

about the Chuck E. Cheese incident on the same day when it happened, and

complainant confirmed that Jennifer was the first person complainant told.

(DX-3: 48, 51; DX-4). Complainant explained to Dula that Jennifer told

Appellant what complainant said. (DX-3: 48; DX-4). Jennifer explained that

it meant something if it did not hurt. (DX-3: 47; DX-4) (emphasis supplied).

5. In response to being confronted by Jennifer, Appellant went to Lavondra

Draper's house to ask complainant why complainant lied about the Chuck E.

Cheese day. (DX-3: 48, 51; DX-4). Draper said "that's why my kids don't

like going with you," because you always doing something to them. (DX-3:

48-49, 51; DX-4).

6. Complainant told Dula that she was nine years old and in the fourth grade

when Appellant checked her before they went to Chuck E. Cheese. (DX-3:

15-16, 18, 20, 23, 43, 49-50; DX-4). Appellant only checked her once when

she was nine, which was on the day when they went to Chuck E. Cheese, but

as complainant explained, the checking happened "all the time" after she

was 10. (DX-3: 15-16,18,49; DX-4).

7. Complaint also said that the first time Appellant "checked" her was after

Jennifer White went to a store. (DX-3: 15-16, 18, 20, 23; DC-4).

76

Complainant later said that the time when Jennifer went to the store was

when complainant was ten. (DX-3: 41; DX-4).

8. Complainant was nine years old on the day when Jennifer went upstairs

before Jennifer went to the store. (DX-3: 2T-22; DX-4). Complainant was

upstairs with her three younger siblings: an eight-year-old girl, a five-year-

old boy and a one-year-old girl. (DX-3: 21-22; DX-4). The children were

playing "babies," a game where complainant's siblings were her children.

(DX-3: 21-22; DX-4). Jennifer "said we was doing something and then she

checked him," i.e., complainant's younger brother. (DX-3: 21; DX-4).

Jennifer "said his privacy was up - sticking up and - and then she said if it

stick up, that mean you've been doing something with somebody." (DX-3:

21; DX-4). Complainant's little brother told Jennifer that complainant told

him to do something to complainant; complainant explained to Dula that

"we didn't do nothing, really." (DX-3: 22, 42; DX-4). When Jennifer went

downstairs and informed Appellant about what complainant's brother said,

Appellant told complainant's little brother to "tell the truth," but he "told a

lie." (DX-3: 22-24, 41-42; DX-4). It was true, however, that a seven-year-

old boy went to Appellant's backyard and showed pictures of naked girls to

complainant. (DX-3: 55-56; DX-4).

9. After Jennifer left with complainant's siblings to go to the store, Appellant

called complainant downstairs, and he asked complainant what

complainant's eight-year-old sister would say about the statement that

complainant's little brother made. (DX-3: 34; DX-4). Appellant told

complainant to get the extension cord, as complainant explained to Dula,

because Appellant was going to whoop complainant. (DX-3: 25, 42; DX-4).

Instead, Appellant turned the TV off and "checked" complainant, (DX-3:

23-25; DX-4). Appellant checked her in the living room. (DX-3: 23-25;

DX-4).

10. Complainant told Dula that a separate time was when Appellant first

checked complainant; it was "in my sister's room," or rather when

complainant was downstairs, but the TV was on, and complainant was

watching the Disney Channel. (DX-3: 25-26, 35; DX-4). Complainant told

Dula that Appellant went upstairs, took his clothes off, came back

downstairs, and sat on a couch in the living room next to the couch where

complainant was sitting. (DX-3: 27-28, 32-35; DX-4). Appellant told

complainant to take her clothes off and lay down, as complainant explained.

(DX-3: 28, 33; DX-4). Complainant told Dula "then he had checked me

77

again. He had put his - no, he - he had put his privacy part in me," which

hurt. (DX-3: 29-30, 33-34; DX-4). Complainant apparently meant to clarify

that Appellant did not check her on the first occasion when he sexually

abused her; Appellant "just put his privacy in me." (DX-3: 31; DX-4).

11. According to complainant, Jennifer came in when Appellant put his privacy

inside of her. Jennifer "screamed," demanding to know "why are you doing

your child like that?" (DX-3: 30; DX-4). Jennifer saw "when he put his -

when he almost put his privacy in" complainant, "but he really did. He said

he almost did, but he did." (DX-3: 30; DX-4). Jennifer saw Appellant put

his stuff inside of complainant, but nobody saw the time when Appellant

was checking complainant, as complainant explained to Dula. (DX-3: 50-

51; DX-4). Jennifer screamed "why are you doing that to your child," and

Appellant told complainant to put her clothes on, because Jennifer was

always calling the police on Appellant. (DX-3: 38, 40; DX-4). The police

went to Jennifer's house, according to complainant's understanding from

talking with Jennifer, but complainant did not talk with them, because

complainant was at Appellant's house. (DX-3: 39-40; DX-4).

12. When Dula asked complainant to clarify where complainant was when

Appellant put his privacy inside complainant, complainant said "[i]n my

sister's room - no, in his room." (DX-3: 36; DX-4). Dula responded: "I'm a

little confused. Because just a minute ago you were telling me that he told

you to take your clothes off and lay back on the couch...[s]o I'm - I'm

confused. Is the stuff that you 're telling me about your dad, is that stuff

that really did happen that you remember in your own head?" (DX-3: 36;

DX-4) (emphasis added). Complainant replied that she did not remember

where she was in Appellant house when he put his privacy inside her,

because she was confused about whether she was nine or 10, but it "was

probably upstairs or downstairs." (DX-3: 36-37; DX-4). When Dula asked

again about the location, complainant said it was downstairs on the couch.

(DX-3: 36-37; DX-4). After Appellant put his privacy in complainant's

privacy, Appellant told complainant to get dressed, go upstairs to his room,

and watch TV. (DX-3: 38; DX-4).

13. Dula was also "a little confused" about whether there was more then one

time when Appellant put his privacy into complainant's privacy. (DX-3: 38;

DX-4). Dula explained to complainant that complainant described an

incident when Appellant came downstairs naked as the only time when

Appellant put his privacy inside complainant, but complainant also said that

78

Jennifer walked in during the only time when Appellant put his privacy into

her privacy, which was when complainant was nine years old. (DX-3: 37-38,

40; DX-4). Complainant did not explain; complainant instead further

discussed the time when she was nine when Jennifer came into Appellant's

house. (DX-3: 38-40; DX-4).

14. Complainant further discussed "all the time when I go to sleep with my little

baby sister." (DX-3: 17; DX-4). Somebody always took her pants off.

(DX-3: 18; DX-4). Complainant did not know who took her pants off, since

a lot of people were in the house. (DX-3: 17; DX-4). Jennifer asked

Appellant why complainant always said somebody took her pants off. (DX-

3: 18; DX-4). According to complainant, Appellant said that he took her

pants off because they were tight, but complainant thought they were

comfortable. (DX-3: 18; DX-4).

15. Dula left the room towards the end of complainant's interview. (DX-3: 18;

DX-4). When Dula returned, she asked complainant: "everything you told

me about what happened with your dad, are those things that are - are

right, things that are true that really did happen?" (DX-3: 60-61; DX-4).

Complainant nodded. (DX-3: 61; DX-4).

16. Complainant also confirmed that Appellant never made complainant touch

him on his private part and nobody ever touched complainant except for

complainant's step-daddy and Appellant. (DX-3: 53-54; DX-4).

79

3tatin>e

Court of Appeals

»etoentlj ©tetrirt of tEexa* at iUtaiarillo

No. 07-13-00156-CR

AUSBON OSBORNE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 396th District Court

Tarrant County, Texas

Trial Court No. 1316584R, Honorable George W. Gallagher, Presiding

May 29, 2015

MEMORANDUM OPINION

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant Ausbon Osborne appeals from his conviction by jury of two counts of

aggravated sexual assault of a child,1 one count of indecency with a child,2 and one

count of injury to a child3 and the resulting sentences of thirty-five years of imprisonment

for the aggravated sexual assault convictions, twenty years for the indecency

1Tex. Penal Code Ann. § 22.021(a)(1)(B) (West 2013).

2Tex. Penal Code Ann. § 21.11(c) (West 2013).

3Tex. Penal Code Ann. § 22.04(a)(3), (f) (West2013).

conviction, and ten years for the injury conviction.4 He presents nine points of error.

We will affirm.

Background

After appellant plead not guilty to each of the four offenses set forth in the

indictment, the case was tried to a jury. The indictment indicates each of the four

offenses allegedly occurred around the same time. The complainant is one of

appellant's several children. By the time of trial, the complainant was in the sixth grade.

While she attended some special education classes, her testimony demonstrated no

particular difficulty in communication.

The complainant testified that when she was in the fourth grade, she told her

teacher appellant had "raped" her. The teacher testified that she asked the complainant

what happened and the child gave more details, telling the teacher of an instance on

which her father sexually assaulted her by penile penetration. Complainant repeated her

statements in a generally consistent manner to others, including investigators with child

protective services, a forensic interviewer and a sexual assault nurse examiner.

Complainant testified at trial to the same incident. Complainant also testified at trial to

other instances in which appellant put his finger inside her "private part."

Appellant did not testify at trial. A detective and two child protective services

investigators5 investigating complainant's allegations testified appellant admitted to

4The sentences run concurrently.

5 During the course of the investigation into complainant's allegations against appellant, the first

investigator retired and the second investigator continued the inquiry into these allegations. Both testified

at trial.

some unusual conduct with complainant. A detective testified that during an interview

with appellant, appellant denied touching the complainant's "private parts" but told him

he had looked at the child's "opening"6 to "check" her for sexual activity because he

believed she was having sex with older boys and might be pregnant or in need of

medical care or birth control. The investigators testified appellant made similar

statements to them. The first investigator also testified appellant admitted he

penetrated complainant while "checking" her but said he did so only to determine

whether she was sexually active. The second investigator testified appellant denied

digital penetration. Adetective testified appellant also stated complainant was a liar.7

The jury found appellant guilty as charged for each offense and assessed

punishment as noted. Appellant subsequently filed a motion for new trial alleging

ineffective assistance of counsel. The trial court held a hearing on appellant's motion

during which it heard the testimony of appellant's counsel and considered documentary

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

followed.

Analysis

Sufficiency of the Evidence

In appellant's first five points of error, he challenges the sufficiency of the

evidence to support each of his convictions.

6The prosecutor clarified the "opening" ofwhich appellant spoke was the complainant's vagina.

7 Complainant made an allegation of sexual abuse against another male. During punishment,

other witnesses, including the mother of some of appellant's other children, concurred that complainant

frequently lied.

Standard of Review

In reviewing issues of legal sufficiency, an appellate court views the evidence in

the light most favorable to the verdict to determine whether, based on that evidence and

reasonable inference therefrom, a rational jury could have found each element of the

offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim.

App. 2010); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) {citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). If, given all of the evidence, a

rational jury would necessarily entertain a reasonable doubt of the defendant's guilt, due

process requires that we reverse and order a judgment of acquittal. Swearingen, 101

S.W.3d at 95 (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992)).

We measure the sufficiency of the evidence against the elements of the offense as

defined by the hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234 (Tex. Crim. App. 1997).

Aggravated Sexual Assault of a Child

By count one of the indictment, appellant was alleged to have, on or about the

29th day of July 2009, "intentionally or knowingly cause[d] the penetration of the female

sexual organ of [complainant], a child younger than 14 years of age who was not the

spouse of the defendant, by inserting his finger into her female sexual organ." Count

two of the indictment alleged appellant, on or about the same date, "intentionally or

knowingly cause[d] the penetration of the female sexual organ of [complainant], a child

younger than 14 years of age who was not the spouse of the defendant, by inserting his

penis into her female sexual organ."

To prove aggravated sexual assault, the State must show (1) appellant

intentionally or knowingly (2) caused the penetration of the anus or sexual organ of a

child by any means and (3) the child was younger than fourteen years of age. Tex.

Penal Code Ann. § 22.021 (West 2013). Under Texas law, the uncorroborated

testimony of a child victim, standing alone, is sufficient to support a conviction for

aggravated sexual assault under section 22.021. Tran v. State, 221 S.W.3d 79, 88 (Tex.

App.—Houston [14th Dist.] 2005, pet. refd); Jensen v. State, 66 S.W.3d 528, 533-34

(Tex. App.—Houston [14th Dist.] 2002, pet. refd). Because appellant does not contest

the evidence of complainant's age, we address only the first two elements of the

offense.

At trial, complainant testified to each of the elements of aggravated sexual

assault as described in counts one and two. She testified that one day, as appellant

was about to take some of the children to Chuck E. Cheese, appellant called

complainant inside from the car to help him find a shirt. She found one and brought it to

him. "He laid me on the couch, and I tried to get up off the couch so I couldn't, and

that's when I started hollering, and that's when he pulled down my pants, and I tried to

pull them back up, and I couldn't so Ijust left it alone. And he wrapped my leg up and he

wrapped my arm up and he had pulled my panties down, and then he put his stuff at

me."8 She stated, "[h]e had sticked it in me, and he said if it hurt, that means you been

8 At trial, the prosecutor clarified with complainant that by her use of the word "stuff in this

context, she was referring to appellant's penis.

doing something. And if it don't, you haven't. And I said it hurt, and he said, yeah, I've

been doing something." The complainant also testified to another instance in which

appellant placed his finger inside her "private part" to "check" her.

The detective and investigators testified to statements made to them by appellant

that he "checked" complainant on a day before he took his children to Chuck E. Cheese.

He also admitted to one investigator to "checking" the complainant on other occasions.

The investigator testified appellant admitted to digital penetration of the complainant

while "checking" her for sexual activity. The forensic interviewer testified the

complainant told her appellant "checked" her by "put[ting] his privacy to her privacy" and

by "putting his fingers in her privacy." The complainant's teacher testified the child told

her that her daddy "raped" her.

Appellant argues the hypothetically correct jury charge in this case would include

consideration of the medical-care defense, because he was "checking" complainant for

suspected sexual activity and its consequences. The Texas Penal Code provides for a

medical-care defense to charges of sexual assault and aggravated sexual assault. See

Tex. Penal Code Ann. §§ 22.011(d); 22.021(d) (West 2013). "It is a defense to

prosecution . . . that the conduct consisted of medical care for the child and did not

include any contact between the anus or sexual organ of the child and the mouth, anus,

or sexual organ of the actor or a third party." Corner v. State, 417 S.W.3d 446, 447

(Tex. Crim. App. 2013).

Malik provides that a hypothetically correct jury charge is one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the

defendant was tried. Malik, 953 S.W.2d at 240. As to defenses, a hypothetically correct

jury charge does not include any and all potential defensive issues but only those

applicable to the case. See Cornet v. State, 359 S.W.3d 217, 228 (Tex. Crim. App.

2012) (trial court erred by refusing medical care defensive instruction). A "defensive

issue" is not "applicable to the case" unless the defendant timely requests the issue or

objects to the omission of the issue in the jury charge. Tolbert v. State, 306 S.W.3d

776, 780 (Tex. Crim. App. 2010). And, the question whether to include a defensive

issue is a strategic decision "generally left to the lawyer and the client." Golston v. State,

No. 06-11-00136-CR, 2012 Tex. App. LEXIS 5251, at * 21 (Tex. App.—Texarkana June

29, 2012, pet. refd) (mem. op., not designated for publication) (quoting Posey v. State,

966 S.W.2d 57, 63 (Tex. Crim. App. 1998)). Appellant did not ask for its inclusion and

therefore, the medical-care affirmative defense is not to be considered here in the

evaluation of the sufficiency of the evidence to support appellant's convictions for

aggravated sexual assault of a child.

There is no requirement that physical, medical or other evidence be proffered to

corroborate the complainant's testimony. See Tex. Code Crim. Proc Ann. art. 38.07

(West 2011); Wallace v. State, No. 07-09-00099-CR, 2011 Tex. App. LEXIS 1384 (Tex.

App.—Amarillo Feb. 23, 2011, no pet.) (mem. op., not designated for publication) (citing

Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (concluding that victim's

testimony alone is sufficient evidence of penetration in prosecution for aggravated rape,

without medical, physical, or other evidence)). We find the evidence sufficient to support

appellant's convictions under counts one and two of the indictment for aggravated

sexual assault of a child. We overrule appellant's second, third and fifth points of error.

Indecency With a Child

To prove indecency with a child as alleged in count three of the indictment, the

State was required to prove appellant, with a child younger than 17 years of age,

whether of the same or opposite sex, engaged in sexual contact. Tex. Penal Code Ann.

§ 21.11(a) (West 2013). "Sexual contact" includes, if committed with the intent to arouse

or gratify the sexual desire of any person, any touching by a person, including touching

through clothing, of the anus, breast, or any part of the genitals of a child. Tex. Penal

Code Ann. § 21.11(c) (West 2013).

Appellant argues the evidence was insufficient to show he acted with the

requisite mens rea because he was engaging in a parental purpose by "checking"

complainant. Intent to arouse or gratify can be inferred from conduct, remarks and

surrounding circumstances. Scott v. State, 202 S.W.3d 405, 408 (Tex. App —

Texarkana 2006, pet. refd). The jury was free to believe or disbelieve any portion of the

testimony and, as evinced by the verdicts here, chose to believe the version of the

events expressed by complainant at trial. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.

Crim. App. 1997); see Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (the

trier of fact may believe witness even though his testimony is contradicted).

The complainant testified appellant touched her genitals with his finger. An

investigator testified appellant acknowledged at one point that he did penetrate the

complainant's genitals. The jury had before it also testimony from the detective and two

investigators that appellant said he "checked" the complainant to see if she was

sexually active. Appellant argues these statements show he did not engage in sexual

contact with the complainant to arouse or gratify his sexual desire but rather had a

parental purpose for doing so. But, the jury also had before it the complainant's

testimony that appellant had previously penetrated her with his penis for the ostensible

purpose of "checking" her for sexual activity. If the jury believed this testimony and did

not believe the penile penetration was for a parental purpose, it was free to infer

appellant engaged in the other acts of penetration for the purpose of arousing or

gratifying his sexual desire. See, e.g., Abbott v. State, 196 S.W.3d 334, 341 (Tex.

App.—Waco 2006, pet. refd) (jury can infer intent to arouse or gratify sexual desire from

defendant's act of touching child's genitals and commission of same conduct on other

occasions is additional evidence of that intent). The jury did not have to believe

appellant's parental purpose explanation and could have convicted appellant based on

the testimony of the complainant and other witnesses. Sharp, 707 S.W.2d at 614. The

evidence was sufficient to support appellant's conviction for indecency with a child and

we overrule appellant's fourth point of error.

Injury to a Child

A person commits the offense of injury to a child if he, by act, intentionally,

knowingly, recklessly, or with criminal negligence causes bodily injury to a child under

the age of fourteen. Tex. Penal Code Ann. § 22.04(a)(3) (West 2013). "Bodily injury"

means physical pain, illness, or any impairment of physical condition. Tex. Penal Code

Ann. § 1.07(8) (West 2013). Injury to a child is a result-oriented offense requiring a

mental state that relates not to the charged conduct but rather to the result of the

9

conduct. Baldwin v. State, 264 S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2008,

pet. refd).

Count four of the indictment in this case alleged appellant committed the injury to

complainant intentionally or knowingly. Appellant challenges only the evidence

supporting his intent or knowledge of causing bodily injury. He argues that "[i]n a

rational sense, the evidence at most demonstrated negligence or recklessness with

respect to the possibility of bodily injury," not intent or knowledge as to causing bodily

injury. He asserts the evidence could not have shown he acted with intent or

knowledge because he was conducting this action with the parental purpose of

"checking" complainant for sexual activity with boys.

Complainant testified at trial that appellant penetrated her "private part" with his

finger and that it hurt because of his "long nails" and that "his bone hurt." The sexual

assault nurse examiner testified that touching a young girl's hymen is painful for the girl.

Complainant testified appellant had previously used his penis to penetrate her and told

her that if it hurt, this meant she was sexually active. The forensic investigator testified

complainant made those same statements to her. Thus, if believed by the jury, the jury

heard from complainant that appellant at least knew penetration of the complainant's

female sexual organ by his penis caused injury to her. The jury heard testimony that

appellant made statements that he was "checking" the complainant and, ifthey believed

he penetrated her with his finger on any of those occasions, the jury could have inferred

he did so with the intent or knowledge that he would injure the complainant because he

knew penetration injured her. The jury was free to infer from this testimony that

10

appellant acted with more than recklessness or negligence when he penetrated

complainant's sexual organ with his finger. Sharp, 707 S.W.2d at 614.

From this evidence, the jury could have reasonably concluded appellant

intentionally or knowingly inflicted bodily injury on the complainant. We resolve

appellant's first point of error against him.

Ineffective Assistance of Counsel

In appellant's remaining four points of error, he contends he received ineffective

assistance of counsel during the guilt-innocence phase of his trial and the trial court

erred in allowing his motion for new trial regarding his counsel's assistance to be

overruled by operation of law.

We defer to the trial court's right to weigh the credibility of the testimony at the

hearing on the motion for new trial. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.

Crim. App. 2001). "Because the trial judge is the sole judge of the credibility of the

witnesses, a trial court does not abuse its discretion by denying a motion for new trial

based on conflicting evidence." Cueva v. State, 339 S.W.3d 839, 857 (Tex. App —

Corpus Christi 2011, pet. refd). In assessing the evidence presented at the new trial

hearing, the trial court, sitting as the trier of fact, may also consider the interest and bias

of any witness. Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.]

1988, pet. refd) (per curiam) (citing Costello v. State, 98 Tex. Crim. 406, 266 S.W. 158

(Tex. Crim. App. 1924)). Deference to the trial court is required even if we would weigh

the testimony differently than did the trial court. Salazar, 38 S.W.3d at 148. Thus, we

review the evidence in the light most favorable to the trial court's ruling and presume all

11

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

Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.—Houston [14th Dist.] 2009, pet.

refd); Acosta v. State, 160 S.W.3d 204, 210 (Tex. App.—Fort Worth 2005, no pet.).

Only when no reasonable view of the record could support the trial court's ruling do we

conclude the trial court abused its discretion by denying the motion for new trial. Holden

v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).

The trial court's determination of a motion for new trial on the ground of

ineffective assistance of counsel is a matter entirely within the trial court's discretion.

Cueva, 339 S.W.3d at 856-57. Therefore, under the facts of this case, we will review the

prongs of Strickland v. Washington through this abuse of discretion standard of review,

reversing only if the trial court's decision was arbitrary or unreasonable. Id. at 857. To

establish ineffective assistance of counsel, appellant must show: (1) his attorney's

representation was deficient; and (2) there is a reasonable probability that, but for his

attorney's errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Salinas v.

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Cueva, 339 S.W.3d at 857. "An

appellant's failure to satisfy one prong of the Strickland test negates a court's need to

consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.

2009). Because Strickland's first prong is dispositive of this point, we will limit our

analysis to that prong. See Tex. R. App. P. 47.1.

"Decisions rooted in strategy do not constitute deficient performance. Unless a

defendant can show in the record that counsel's conduct was not the product of a

strategic decision, a reviewing court should presume that trial counsel's performance

12

was constitutionally adequate unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it." Cueva, 339 S.W.3d at 857-58 (citations

omitted). Appellant's trial counsel testified at the hearing on appellant's motion for new

trial. The court also admitted for consideration several documents, including a copy of

the motion for new trial; affidavits from appellant, appellant's girlfriend and appellant's

sister; a transcription of a recording of a conversation between the complainant and

appellant's sister; a transcription and DVD copy of the forensic interview of complainant;

a copy of an indictment and judgment against complainant's mother's former boyfriend,

and a transcription of appellant's girlfriend's grand jury testimony. The trial court took

the matter under advisement. Appellant's motion for new trial was later overruled by

operation of law.

In his motion for new trial and on appeal, appellant contends his counsel was

ineffective in several ways: (1) trial counsel had trouble hearing the testimony during

trial; (2) he left at his office the only copy of a video where complainant recanted; and

(3) he failed to call a member of appellant's family who would have contradicted basic

elements of complainant's testimony. He further argued, "[i]n the alternative, [appellant]

would submit that trial counsel erred at sentencing by failing to present adequate

mitigation evidence and by failing to adequately dispute the sentencing allegations." On

appeal, appellant includes a number of additional complaints about his counsel.

At the hearing, counsel was asked whether he has hearing problems and had

them during trial. He answered, "Probably so. I know I had to ask witnesses numerous

times to repeat what they were saying. And some of the times when they would repeat

it, I wasn't really sure that I knew exactly what they were saying. My cross-examination

13

seemed to flow, and it appeared to me as I was asking the questions that I did

understand it, but I don't really know." During cross-examination, counsel answered

affirmatively when asked if he was able to communicate with appellant, witnesses and

family members. On appeal, the State points out several instances during trial in which

counsel asked a witness to repeat an answer and incorporated the answer into his next

question, indicating he heard and understood the witness. We agree with the State's

assessment.

We acknowledge appellant's argument on appeal his counsel was ineffective for

failing to request a continuance due to his hearing issues. However, this was not

explored at the hearing on appellant's motion for new trial and the record is silent on this

point. We must assume counsel made a strategic decision not to ask for a continuance

due to his hearing issues. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)

(stating counsel should ordinarily be accorded opportunity to explain actions before

being condemned as unprofessional and incompetent).

Appellant next complains of counsel's failure at trial to offer into evidence a

particular video. Counsel also testified he was aware prior to trial of the video appellant

claims he should have offered at trial. He told the court, "I decided not to use it, and I

could see that it would go either way. On the one hand, the child is saying something

contrary to what she says in court. On the other hand, she's in a public place with

someone asking her kind of leading questions about things that she would not want to

admit around other people, I would imagine. And I felt like if we did that, it may be more

damaging than helpful. I tried to cover the situation through cross-examination." On

cross-examination at the hearing he agreed the decision was one of strategy. Counsel

14

is not required to perform flawlessly, and ineffectiveness is not established solely by the

fact that a different trial strategy may have been pursued by another attorney in

hindsight. Muennink v. State, 933 S.W.2d 677, 680 (Tex. App.—San Antonio 1996, pet.

refd); see Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) ("The mere

fact that another attorney might have pursued a different tactic at trial does not suffice to

prove a claim of ineffective assistance of counsel," cert, denied, 133 S. Ct. 834 (2013)).

We cannot find counsel provided ineffective assistance on this point.

Counsel also testified about his decision to refrain from calling appellant's sister

as a witness. He stated, "I had had a discussion with the Defendant and we decided

not to do that. It was a little bit of a value judgment, you might say, in how [appellant's

sister] might appear on the stand, if she were to become overly outgoing or not. And I

just decided that it would probably be better not to." He further testified, "I concluded

that she was - it was a little bit unpredictable as to what sort of emotional state she

would be in and how she would respond to direct and cross." He also testified he

decided not to call appellant's girlfriend because he believed "at the time that it would be

counterproductive to do so." During cross-examination at the hearing, he told the court

he and appellant discussed it and "jointly decided not to" call the girlfriend, although he

could not recall the reasoning behind the decision. He did say he would "possibly" call

the girlfriend if he had the trial to do over again, given the possibility of her testimony

contradicting the complainant's version of events. We cannot say counsel's decisions

were not reasonable or that he was deficient for making those choices. See James v.

State, 997 S.W.2d 898, 902 (Tex. App.—Beaumont 1999, no pet.) (trial counsel's failure

15

to call every witness requested by defendant is irrelevant absent evidence defendant

would have benefitted from testimony).

Appellant complains of counsel's decisions regarding objections and introduction

of certain evidence. We agree with the State that to the degree appellant is arguing his

counsel should have objected to multiple outcry witnesses, such an objection would

have been improper. A teacher testified at trial to complainant's outcry of appellant's

penile penetration while an investigator testified to her outcry of appellant's digital

penetration. The outcry statute is event-specific, not person-specific, and there can be

multiple outcry witnesses. Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana

2000, pet. refd). Because the teacher and the investigator described different events,

the testimony of both was admissible. The sexual assault nurse examiner testified to

statements made to her for purposes of medical diagnosis or treatment. See Tex. R.

Evid. 803(4). As to appellant's complaints that his counsel failed to utilize the forensic

interview and phone calls of complainant to a greater degree, counsel's testimony at the

hearing on the motion for new trial indicates his decision was again one of strategy.

Thus, appellant has not demonstrated that counsel performed "below an objective

standard of reasonableness" on this basis.

We reach the same conclusion concerning counsel's decisions regarding the

punishment phase of appellant's trial. Counsel noted he thought about his approach to

punishment but did not believe "it would be particularly helpful" to call members of

appellant's family or other witnesses to testify during punishment or to present evidence

of appellant's potential mental illness. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.

App. 2010) (also noting failure to call witnesses at the guilt-innocence and punishment

16

stages is irrelevant absent a showing that such witnesses were available and appellant

would benefit from their testimony).

Appellant further contends his trial counsel was ineffective because he failed to

request a medical defense instruction to show his parental purpose in "checking"

complainant. The medical-care defense is one of confession and avoidance. Cornet,

359 S.W.3d at 224-25; Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013). A

defendant claiming entitlement to this defense must admit to each element of the

offense.Jncluding both the act and the requisite mental state. Villa, 417 S.W.3d at 462.

When the defensive evidence does no more than attempt to negate an element of the

offense, a defendant is not entitled to a defensive instruction on any defense subject to

the confession-and-avoidance doctrine. Id. (citing Shaw v. State, 243 S.W.3d 647, 659

(Tex. Crim. App. 2007)). An instruction on a confession-and-avoidance defense is

appropriate only when "the defendant's defensive evidence essentially admits to every

element of the offense, including the culpable mental state, but interposes the

justification to excuse the otherwise criminal conduct." Id. Given the state of the law

and appellant's denial that he touched complainant9 while "checking" her, the defense

was inapplicable here and counsel was not ineffective for failing to request it.

Appellant also complains that his counsel elicited testimony regarding appellant's

presence at complainant's school just before trial. At the hearing, counsel testified he

chose to elicit this testimony because he believed the State would introduce it as

evidence that appellant was attempting to intimidate complainant. His strategy was to

9 As noted, an investigator testified appellant admitted he penetrated complainant on one

occasion. But, evidence showed, appellant on another occasion denied he made this statement.

17

introduce it first. Again, appellant has not demonstrated that counsel performed "below

an objective standard of reasonableness" on this basis.

We conclude appellant has failed to show any of the complained-of acts and

omissions by his counsel fell below an objective standard of reasonableness.

Accordingly, the trial court did not abuse its discretion in allowing appellant's motion for

new trial to be overruled by operation of law. We overrule appellant's sixth, seventh,

eighth and ninth points of error.

Conclusion

Having overruled each of appellant's nine points of error, we affirm the judgment

of the trial court.

James T. Campbell

Justice

Do not publish.

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