stating that counsel is presumed to have acted competently
How later courts described this case
- stating that counsel is presumed to have acted competently
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-90,322-01
EX PARTE CHAD MICHAEL BOUTWELL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 15-116A IN THE 130TH DISTRICT COURT
FROM MATAGORDA COUNTY
SLAUGHTER, J., filed a concurring and dissenting opinion in which KELLER,
P.J., and RICHARDSON, J., joined.
CONCURRING AND DISSENTING OPINION
Applicant’s continuous-sexual-assault-of-a-child conviction and 99-year prison
sentence arose after a jury trial in which the victim, a three-year-old-boy, testified. 1 Also
included in the evidence were Applicant’s voluntary, non-custodial video-recorded
interviews (three of them) to law enforcement, and his qualified written confession. In his
1
The child victim was three years old at the time of the offense and four years old at the time of
trial.
Boutwell - 2
application for post-conviction habeas relief, Applicant argues that he is entitled to a new
trial because his trial counsel was ineffective for failing to call two expert witnesses, one
specializing in child psychology/child forensic interviewing, and one specializing in the
Reid Technique of law enforcement interviewing. As addressed below, trial counsel’s
failure to call these experts in the guilt-innocence phase does not constitute deficient
performance and even if it did, Applicant cannot show prejudice. As such, Applicant is not
entitled to a new trial on guilt. Applicant is, however, entitled to a new punishment trial
based on counsel’s failure to put on available mitigating evidence.
Instead of solely granting a new punishment trial, the Court grants Applicant a new
trial on guilt. This decision not only fails to defer to the jury’s credibility assessment, fails
to take into consideration that Applicant’s interviews were voluntary and non-custodial,
and fails to realize there is no error and no prejudice, but it also needlessly subjects this
child victim to the stress and trauma of an entirely new trial. Moreover, by indicating that
a trial counsel’s failure to call an expert on the Reid Technique of interviewing suspects,
used by the vast majority of law enforcement officers for the past 60 years, is per se
deficient performance, the Court is opening up the floodgates for a tsunami of appeals and
post-conviction writs. I, therefore, vigorously dissent.
I. Background
In late January 2015, a three-year-old boy, Junior, 2 unexpectedly asked his mother,
2
Junior is the child’s nickname.
Boutwell - 3
Ashley, whether their across-the-street neighbor, Chad (Applicant), had a “weenie.” This
led to Ashley asking him some more questions. As a result, she called the police to report
that she believed Applicant sexually assaulted Junior. A police investigation ensued.
Sergeant Maria Gomez interviewed Junior’s mother (Ashley), Junior, and Boutwell. Junior
was also subjected to a Child Advocacy Center interview and a SANE examination.
Junior reported that Chad: (1) put his “weenie” on Junior’s tummy; (2) made Junior
put his mouth on Chad’s penis; and (3) put his finger in Junior’s anus. After stating that
Chad had put his penis in Junior’s mouth, Junior also volunteered the statement that “germs
were flying everywhere” and it kind of looked like water coming out of Chad’s penis. Sgt.
Gomez opined at trial that this was Junior’s three-year-old way of describing ejaculation.
Junior also said that Chad didn’t wash his hands, had “germs” all over his hands, and put
the “germs” on Junior’s hands. Junior further reported that Chad hurt him “really bad,”
Junior cried, and Chad gave him a lollipop. In addition to these statements, Junior, while
very hard to understand at times with his three-year-old voice, lack of enunciation, and
limited vocabulary, seemed to also make some bizarre statements which sounded like (but
again were unclear and Sgt. Gomez admitted at trial that she could not understand all of
what Junior said): Chad’s penis was blue and had a knife at the end of it; when Chad put
his “weenie” in Junior’s mouth it cut his tongue off; Chad put his whole hand in Junior’s
mouth; Chad cut Junior’s penis; Chad broke his own “weenie” and it came off; and a bug
broke Chad’s “weenie.”
Boutwell - 4
After Sgt. Gomez interviewed Ashley and Junior, she stopped by Applicant’s home
and asked if he would voluntarily come to the police station to speak with her. He agreed.
In all, Applicant voluntarily gave three separate, non-custodial interviews. These
interviews, along with testimony and other evidence, were introduced at trial. A summary
of the trial evidence is provided below.
A. January 30, 2015 – Boutwell’s first voluntary, non-custodial interview 3
On January 30, 2015, Boutwell voluntarily appeared for his initial videotaped police
interview. Although Boutwell was 36 years old, he brought his father with him. At times,
Boutwell’s father was in the interview room with him.
In this initial interview, Sgt. Gomez informed Boutwell of Junior’s allegations
which also included Junior stating that Boutwell tried to pull down his 6-year-old sister’s
pants. Boutwell denied the sexual assault allegations but admitted that Junior and Junior’s
sister had spent time at his house. He claimed that the kids frequently invited themselves
over because they wanted to play with his three-year-old son, Matrix. The interview led to
Boutwell becoming very emotional as he confessed that he had been molested as a child.
He further talked about his distress over his wife’s diagnosis of stage-four cancer and that
she was currently on hospice and expected to die soon. Boutwell frequently cried and stated
that he is stressed out and cries “like a baby” every day.
3
The first interview recording is over 28 minutes in length. Although only 13 minutes of this
interview were published to the jury, the entirety of the video was admitted as an exhibit for the
jury’s consideration.
Boutwell - 5
Boutwell mentioned getting a lawyer a few times but continued talking. At one
point, Sgt. Gomez informed Boutwell that he had an absolute right to get an attorney and
that if he wanted one, she would end the interview. Boutwell insisted on continuing with
the interview and even offered to take a polygraph. Towards the end of the interview, he
also voiced his concern over being arrested and not wanting to “go to a jail cell.” Sgt.
Gomez informed him that “that’s not going to happen today.” But she also told Boutwell
that if a judge were to issue a warrant, she will have to arrest him. Boutwell responded by
asking if she could contact him and give him a chance to turn himself in so that his wife
did not have to see him arrested. She agreed that she would give him that opportunity.
Boutwell was allowed to return home with no arrest.
B. February 10, 2015 – Boutwell’s second voluntary, non-custodial interview 4
On February 10, 2015, Boutwell agreed to another voluntary interview with Sgt.
Gomez. His father sat with him and provided additional input. Boutwell again shared in
further detail his experience with being molested as an 8-year-old boy and how at age 12,
his uncle also tried to molest him. He stated that after the incident with his uncle, he told
his aunt and mother about it which resulted in his uncle beating him mercilessly to get him
to recant. The beating was only interrupted by a phone call from an Alvin detective wanting
to talk to Boutwell about the trial of the man who molested him and another child when
4
The recording of the second interview is nearly 31 minutes long and was published to the jury in
its entirety.
Boutwell - 6
Boutwell was eight.
Then, in early January 2014, Boutwell’s uncle called him and apologized for beating
him when he was twelve. This phone call triggered an overwhelming emotional response
which resulted in Boutwell’s downward spiral and his return to drugs. 5 Boutwell indicated
that his drug and alcohol use during the January/February 2014 timeframe caused him to
experience blackouts. 6 He admitted that if he sexually assaulted Junior, “without a doubt
that would have been the time.” Boutwell’s father added that during that timeframe, he
could not seem to get through to his son and the two argued quite a bit.
On several occasions during the interview, Boutwell’s father encouraged Boutwell
to “open up” so that he could get the help he needed. Towards the end of the interview,
Boutwell stated that he could not afford a lawyer. Sgt. Gomez responded by saying that
one could be appointed for him. Boutwell then stated, “I want to make a deal. I want to get
clean again.” Sgt. Gomez responded that she wanted to get Boutwell help, she wanted his
family to stay together, and she believed the district attorney could help. At the end of the
interview, Boutwell signed a written statement. In the statement, Boutwell provided that
he had no recollection of any indecency with a child and that he “didn’t do it.” But he ended
5
Boutwell discussed struggling with drug addiction and being admitted into mental hospitals on
three occasions. These hospital admissions, however, were not related to seeking help for the
trauma of being molested. Boutwell stated that until January 2014, he had managed to stay clean
for over four years.
6
But Boutwell also stated that he always waited for everyone to go to bed before he took drugs
and then he would go to the front porch to take them.
Boutwell - 7
his written statement with “I need to clean up.” He was again allowed to return home
without arrest.
C. February 12, 2015 – Boutwell’s third voluntary, non-custodial
interview 7
After the February 10th interview, Boutwell’s father contacted Sgt. Gomez and
asked if Boutwell could meet with her for another interview. She agreed. On February 12,
2015, Boutwell and his father met with Sgt. Gomez for a third time. In this interview,
Boutwell wore a large cross around his neck and was again very emotional. He spoke at
length about his childhood traumas involving sexual assault and abuse and disclosed that
he had even been abused by his own older brother and cousin. He also spoke about his
wife’s support and how she encouraged him to open up to his dad about being sexually
assaulted, which he did. Boutwell’s father became emotionally overwhelmed during the
conversation, saying that he should have been there to protect his son.
From his interview, one could ascertain that Boutwell intended to confess. He stated,
“The sins you commit when you’re drunk, you have to pay for when you’re sober.” He
then asked Sgt. Gomez whether she would be calling CPS regarding his kids. He did not
seem surprised, and in fact, seemed resigned, when she informed him that she had already
spoken to a CPS worker who informed her that she would need to confer with her
7
The video of Boutwell’s final interview is just over 45 minutes long. Approximately two-and-a-
half minutes of the video were not shown to the jury. But, as with the other videos, it was admitted
in its entirety as an exhibit and is part of the appellate record.
Boutwell - 8
supervisor regarding the next step.
Sgt. Gomez also stated to Boutwell, “You’re here to, like you said, take
responsibility and get this all behind [you].” Boutwell’s father also encouraged his son to
confess. He told Chad that he needed to “[r]egroup and get yourself together and get some
help.” Along with Sgt. Gomez, Boutwell’s father also told him that even if he couldn’t
remember the details, his subconscious knew what had happened and even stopped him
from doing anything worse.
Sgt. Gomez encouraged Boutwell to confess saying:
Like you’ve said, that phone call [from your uncle] was the trigger. . . . We’re
not making excuses, and you haven’t once used it as an excuse. . . . This is
one more thing you need to get behind you. . . . Like I said, the DA will get
with you. They will be more than willing to work with you. I mean I know
they are. They’re not about putting somebody locked up for years at a time
when they’re not going to get help there. . . . It could have been worse for a
whole lot of kids. I mean you know you’re having blackouts . . . you can’t
control your drug habit . . . we’re lucky it wasn’t worse than this. . . . You’re
not the dirtbag you think these other men who messed with you are. . . .
Something stopped you from hurting this little boy any worse . . . something
stopped you. . . . The polygraph exam showed something. There’s something
inside you knows. . . . This is where you got to get it out. Right here and it
stays right here.
Boutwell interjected that, “I do apologize, I can’t say that I remember.” But his
father responded that “subconsciously” he does remember. To which Boutwell responded,
“I remember flashes of things. . . .”
Sgt. Gomez then responded, “I know you’re admitting that you believe something
happened. You have to know in your heart this is what happened.”
Boutwell - 9
Then, in the following exchange, Boutwell affirmatively acknowledged that he
sexually assaulted Junior:
Sgt. Gomez: If you’re going to own up to it, own up to it. . . . We’ve
got it down to a time frame where you believe it
happened.
Boutwell: Yeah, if that’s where it would have . . .
Sgt. Gomez: It’s not if it is, is it?
Boutwell: No, that’s where it happened. . . . I’d come to the same
conclusion as y’all. . . I did screw up . . . .
Sgt. Gomez: You’re admitting ‘yes, I touched him, yes.’
Boutwell: Yes.
Sgt. Gomez: ‘Let’s get this shit over with. Yes.’
Boutwell: Yes.
Sgt. Gomez: Is that what you’re saying?
Boutwell: Yes.
Boutwell ultimately signed a voluntary, written, qualified confession that
acknowledged he was not under arrest nor was he being detained for a crime. The statement
provided the following:
I Chad Boutwell believe that the accusation against me with my neighbor Jr.
happened sometime between the last part of January to early part of February
2014. I have blackouts and am taking responsibility for what happened.
There is no excuse for what I did. I know that this is the only time that I could
have done what I am being accused of.
D. Other trial evidence
Boutwell - 10
In addition to all three of Boutwell’s videotaped interviews as well as his written
statements, the jury also viewed Junior’s videotaped interview with Sergeant Gomez and
heard live testimony from Sergeant Gomez, Junior’s father (Bradford), the CAC forensic
interviewer, the SANE nurse, Junior, and Boutwell’s father (Thomas).
1. Sergeant Gomez’s trial testimony
Sergeant Gomez’s trial testimony mainly focused on describing her interviews of
Boutwell and Junior. Regarding Sergeant Gomez’s interview with Junior, on cross-
examination defense counsel focused almost exclusively on Junior’s unusual statements
and sought to undermine his credibility on that basis. But on redirect, Junior’s videotaped
interview was admitted into evidence for the jury. Sergeant Gomez concluded that when
the interview is viewed as a whole rather than just considering the excised pieces that
defense counsel focused on, the jury was afforded a better context for the assault that Junior
experienced at Boutwell’s hands.
2. Bradford’s (Junior’s father) trial testimony
Junior’s father, Bradford, testified that the family moved to the house across the
street from Boutwell in 2013, and the two families became friendly. Bradford testified that
he would often sit and drink beer with Boutwell. Bradford’s two younger children (Jordan
and Junior) would play with Boutwell’s son, Matrix. Bradford further stated that Boutwell
would take the kids for rides on his three-wheeler. Bradford even allowed Boutwell to
borrow a car he was not using—he told Boutwell that he would leave the keys in it and
Boutwell - 11
Boutwell could use it when needed. While initially there was a good relationship between
the two families, Bradford recalled a strange incident. He testified that on one occasion in
2014, Boutwell borrowed Bradford’s car and attempted to pick up Junior from his
babysitter’s house. Neither of Junior’s parents had asked or given Boutwell permission to
do this. Thus, Bradford was surprised when the babysitter called him at work to ask if
Junior could leave with Boutwell. Bradford instructed the babysitter that his kids were not
to leave her house with anyone. He spoke to Boutwell about it later, thought the situation
was odd and that Boutwell had crossed the line, but he ultimately brushed it off.
Bradford also testified about instances of Junior’s behavior in 2014 that at the time
he believed were normal, but now knowing about Junior’s accusations, he believed were
consistent with the allegations of abuse. These behaviors included: renewed and increased
bedwetting, angry outbursts and fighting with his sister with whom he was close, and
masturbation. On cross-examination, defense counsel clarified that at the time of these
events, the behaviors seemed normal, Bradford thought nothing of it, and he did not seek
professional help for his son. Defense counsel also elicited from Bradford that around the
time of these behaviors, Junior started a Sunday school class and Pre-K where such changes
could have caused the behaviors, or Junior could have been influenced by or learned those
behaviors from other children in those settings.
Bradford also recalled a conversation he had with Boutwell the night before Junior
outcried to his mother. In the conversation, Bradford was giving Boutwell thoughts on
Boutwell - 12
forgiveness and being able to forgive yourself. Boutwell then asked Bradford whether God
could forgive a child molester. Bradford testified that this conversation really stuck in his
mind very clearly because the very next day, he learned of Junior’s accusations. But on
cross-examination, Bradford agreed that Boutwell could have been referring to God
forgiving the men that molested him.
3. CAC Forensic Interviewer Maria Flores’s trial testimony
The CAC forensic interviewer, Maria Flores, testified that Junior told her Chad “put
his weenie on my chest and in my bootie and it hurt really bad.” Junior also told her that
there was blood on Chad’s fingers. She used anatomical drawings of a boy and a male
teenager to have Junior show her what he meant by each body part he referenced. Junior
circled the body parts and Flores wrote down the name by which Junior referred to them.
These drawings were admitted into evidence. On cross-examination, defense counsel
focused on Junior’s more nonsensical statement that a bug broke Chad’s “weenie,” again,
in an attempt to undermine the validity of Junior’s accusations.
4. SANE Sandra Pardo’s trial testimony
The State then called Sandra Pardo, the sexual abuse nurse examiner (SANE). Pardo
testified that Junior told her, “Chad touched my butt with his hand on the outside. I told
him to stop and he did. He had his clothes off and was shaking his butt. Chad touched my
weenie. He cut it.” Pardo further testified that she found no physical evidence of trauma or
sexual abuse, but that that would be expected for abuse that occurred months earlier. On
Boutwell - 13
cross-examination, defense counsel stressed, and Pardo agreed, that the lack of any
physical findings of abuse was also consistent with no history of any abuse. Defense
counsel also stressed with Pardo that she only takes down what the patient says but has no
idea whether it is truthful or not. Pardo agreed but followed with “[m]ost children don’t
come up with stories just like that.”
5. Junior’s trial testimony
The State’s final witness was Junior, who was four years old at the time of trial.
Junior testified that he did not remember everything and his answers to questions reflected
that. When asked about what Chad did to him, Junior expressed reluctance to answer and
said that he was embarrassed to talk about it in front of all the people. In response, the
prosecutor used a drawing of a boy and had Junior circle where the “weenie” was. After
the drawing, Junior remained reluctant to answer questions about Chad stating “[i]t’s
embarrassing me.” But he finally testified that he saw Chad’s “weenie” one time. He also
testified that the abuse he told his mother about happened at Chad’s house.
On cross-examination, defense counsel began asking Junior about the bizarre
statements he made when he spoke to Sergeant Gomez. He first asked about Chad’s penis
being blue. Junior testified that it was not blue. Junior also testified that he did not
remember saying that Chad put his whole hand in Junior’s mouth, nor did he remember
saying that a bug broke Chad’s “weenie.” Junior also testified that Chad did not cut Junior’s
tongue or “weenie.” Junior further testified that he never told anyone that Chad had a “grass
Boutwell - 14
weenie” or that Chad had a knife on his “weenie.” After cross-examination, the State rested.
6. Defensive evidence – Thomas’s (Boutwell’s father) trial
testimony
The sole witness called by the defense was Applicant’s father, Thomas Boutwell.
Thomas testified that Junior and his sister used to come over to Applicant’s house to play
with Applicant’s son, Matrix. The visits usually occurred on the weekends when everyone
was home from work. Thomas testified that, to his knowledge, Applicant was never alone
with Junior or his sister. Thomas also testified about Applicant’s out-of-court written
statements. Thomas stated that after Applicant initially denied the offense in his first
written statement, Sgt. Gomez said “that she could put more charges on him than I could
afford to get him out of jail.” Thomas explained that Sgt. Gomez “wanted [Applicant] to
give a confession. She was wanting him to, you know, own up to what he was . . . being
accused of.” After that, Applicant returned and gave the second statement in which he gave
a qualified confession. Thomas testified that Applicant’s concern about Sgt. Gomez’s
threat to bring “more charges [and] a lot of bail amounts” influenced his decision to give
the second statement. Thomas also explained that Applicant was worried that if he were
arrested and could not afford bail, he would be in jail while his wife was dying of cancer.
On cross-examination, however, Thomas agreed that he had encouraged his son to give the
second statement to “get this off his chest” and to get the “help he needs.” He also agreed
that he did not know whether his son committed the offense and was not with his son every
moment, so it was possible that Applicant was alone with Junior at times.
Boutwell - 15
Based on the trial evidence, the jury convicted Boutwell of continuous sexual assault
of a child and sentenced him to 99 years in prison. Boutwell appealed based in part on
ineffective assistance of counsel alleging that, in the guilt phase, the prosecutor used
improper bolstering and defense counsel failed to object. The Thirteenth Court of Appeals
rejected Boutwell’s arguments and affirmed the conviction, finding defense counsel
provided effective assistance. Boutwell v. State, No. 13–16–00135–CR, 2017 WL 2875516
(Tex. App.—Corpus Christi July 6, 2017) (pet. ref’d). Boutwell then filed the instant
application for a writ of habeas corpus again alleging that his trial counsel was ineffective,
but this time basing his claim on defense counsel’s failure to call expert witnesses.
II. Applicant’s habeas claims for Ineffective Assistance of Counsel (IAC) in
the guilt phase of trial.
Regarding the guilt phase of trial, Boutwell asserts claims for IAC based on trial
counsel’s failure to call certain expert witnesses in two general categories: (1) child
psychology and forensic interviewing techniques; and (2) the “Reid Technique” widely
used by law enforcement interviewers. In support of his claim, Boutwell offered the
affidavits of two psychologists—one for each category. Boutwell also offered various
articles on the topics at issue.
After a habeas hearing at which defense counsel, Bill Leathers, testified, the habeas
court found that Applicant failed to overcome the legal presumption that counsel’s actions
during the guilt phase amounted to sound trial strategy. Citing Dannhause v. State, 928
S.W.2d 81, 86 (Tex. App.—Houston [14th Dist.] 1996, no pet.), it noted, that “[d]efense
Boutwell - 16
counsel need not pursue all available defenses,” and may instead “focus on the most viable
means of obtaining a verdict in the defendant’s favor.” Specifically, the trial court noted
that Leathers’ trial strategy was to demonstrate that the State failed to meet its burden of
proof. One such example was to undercut the credibility of the only witness and source of
direct evidence—a three-year-old child—by focusing extensively on Junior’s nonsensical
and bizarre allegations regarding the sexual assault (i.e., that Chad’s penis was blue, had a
knife on it, and it cut Junior’s tongue and penis). The habeas court concluded that “[t]rial
counsel effectively focused on the weaknesses in the State’s case at every stage.” Further,
“[t]he fact that the jury believed the child witness beyond a reasonable doubt despite
counsel’s strategy does not render that strategy or counsel’s representation ineffective.”
The habeas court, therefore, recommended that this Court deny relief as to the guilt phase
of the trial. Given the court’s conclusion that counsel’s performance was not deficient, the
habeas court did not hear testimony from the two expert witnesses who had provided
affidavits in support of Applicant’s claim.
On direct appeal, before the instant writ was filed, the court of appeals reached the
same conclusion regarding defense counsel’s trial strategy, albeit with regard to a different
claim of ineffectiveness. 8 It found that counsel effectively represented Boutwell, noting:
Throughout the stages of litigation, trial counsel demonstrated his advocacy
for Boutwell. During pre-trial, trial counsel filed motions in limine and
8
On direct appeal, Boutwell also asserted IAC claims. His claim there, however, was that the
prosecutor’s closing arguments consisted of improper bolstering to which counsel failed to object.
Boutwell, 2017 WL 2875516, at *2–3.
Boutwell - 17
motion to exclude or redact video to exclude certain testimonies. At the
opening of trial, trial counsel requested a ruling on his motion to exclude
witnesses. As the trial progressed, trial counsel sought a jury instruction to
keep Boutwell’s confession from jury consideration and challenged the
State’s witnesses through cross-examination. Moreover, defense counsel put
forward a witness that provided testimonial evidence supporting his
arguments. Counsel demonstrated his advocacy for Boutwell many times
throughout litigation, and it is the complete picture of the counsel’s
representation we must look at in determining whether it was effective.
Defense counsel’s actions throughout the trial process suggest generally
effective representation.
Boutwell, 2017 WL 2875516, at *3.
III. Analysis of Boutwell’s Guilt-Stage IAC Claims
In a case like this where the habeas court’s findings are supported by the record, we
are supposed to defer to those findings. Ex parte De La Cruz, 466 S.W.3d 855, 865–66
(Tex. Crim. App. 2015) (citing Ex parte Navarijo, 433 S.W.3d 558, 567 (Tex. Crim. App.
2014)). It is only “[w]hen our independent review of the record reveals that the trial judge’s
findings and conclusions are not supported by the record [that] we may exercise our
authority to make contrary or alternative findings and conclusions.” Ex parte Reed, 271
S.W.3d 698, 727 (Tex. Crim. App. 2008).
To prevail on an IAC claim, Applicant must show both: (1) that trial counsel’s
performance was deficient; and (2) that this deficient performance prejudiced his defense.
Wiggins v. Smith, 539 U.S. 510, 521 (2003). “[T]he proper standard for attorney
performance is that of reasonably effective assistance.” Strickland v. Washington, 466 U.S.
668, 687 (1984). When assessing “reasonably effective assistance,” courts must keep in
Boutwell - 18
mind that “[e]ven the best criminal defense attorneys would not defend a particular client
in the same way.” Id. at 689. In fact, “[t]here are countless ways to provide effective
assistance in any given case.” Id. Thus, “[i]t is not our task, [] to undertake an apples-to-
oranges-like comparison of ‘Trial Strategy No. 1’ to ‘Trial Strategy No. 2’ and determine
which strategy we think preferable.” Ex parte Walker, 425 S.W.3d 267 (Tex. Crim. App.
2014). We must simply and fairly determine whether “counsel’s strategic decision was
‘reasonable considering all the circumstances’—or, alternatively, whether counsel
committed an ‘error[ ] so serious that [he] was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.’” Id. In making such a determination, we must
keep in mind that “[a] ‘fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time’ the decision was made.” Id. (quoting Strickland, 466 U.S. at 689); see also
Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S.
940 (1987) (“We apply the test as of the time of trial, and not through hindsight.”). Our
review of counsel’s representation must be highly deferential and must presume counsel’s
actions were sound trial strategy. Strickland, 466 U.S. at 689; Kimmelman v. Morrison,
477 U.S. 365, 384 (1986) (stating that counsel is presumed to have acted competently).
In addition to overcoming the strong presumption that counsel’s actions were sound
trial strategy, Applicant must also establish that any such errors by counsel prejudiced him.
Boutwell - 19
In establishing prejudice, “[i]t is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693.
“The defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Applicant must prove both prongs to prevail on an ineffective assistance claim. See
Strickland, 466 U.S. at 697; Andrew v. State, 159 S.W.3d 99, 101 (Tex. Crim. App. 2005).
A. Applicant cannot overcome the strong presumption that defense
counsel’s guilt-phase trial strategy was reasonable given the trial
evidence, counsel’s vigorous cross-examinations, and counsel’s
focus on reasonable doubt.
Given the trial evidence, defense counsel exhibited reasonable and sound trial
strategy in focusing on the State’s burden of proving its case beyond a reasonable doubt.
From his opening statement, throughout cross-examination, and through to closing
arguments, defense counsel stressed that there was no credible evidence of any sexual
assault other than the bizarre and unusual allegations—some of which were clearly false—
of a three-year-old boy. There was no physical evidence and no corroboration for Junior’s
accusations.
On cross-examination for almost every one of the State’s witnesses, defense counsel
raised Junior’s strange and clearly untruthful allegations that: Chad had a grass penis;
Chad’s penis was blue and had a knife on it; Chad’s penis cut Junior’s tongue off; Chad
cut Junior’s penis; a bug broke Chad’s penis; Chad broke off his own penis; and Chad put
Boutwell - 20
his whole hand inside Junior’s mouth.
When cross-examining Junior’s father, Bradford, defense counsel elicited an
admission that when Boutwell referred to whether God could forgive a child molester, he
may have been referring to the men that molested Boutwell. Bradford also admitted on
cross-examination that Junior’s behavior such as bed-wetting, angry outbursts, and
masturbation seemed very normal at the time. In fact, Bradford admitted that, at the time,
he thought nothing of these behaviors and never sought any professional help. Moreover,
defense counsel raised the fact that because Junior started attending Sunday school and
Pre-K with other children around that same time, such changes and peer influences could
have caused the behavior at issue. Bradford agreed with defense counsel’s assessment.
Further, it is worth noting that before trial, trial counsel was not aware of Bradford’s
statements about Junior’s behaviors of bedwetting, angry outbursts, and masturbation.
Thus, counsel had no reason to call an expert on whether such behaviors were indicative
of sexual assault.
With both the CAC Forensic Interviewer and the SANE nurse, in addition to
stressing Junior’s clearly false and bizarre statements, defense counsel stressed that they
had never previously met Junior, had no knowledge of whether he was truthful or not, and
that it is not their job to determine if Junior’s statements were true. He also noted with both
of these witnesses that they failed to follow up and get any clarification regarding most of
Junior’s allegations. Finally, he stressed and received admissions that other than Junior’s
Boutwell - 21
statements, there was absolutely no evidence to prove that Junior had been sexually
assaulted.
When Junior testified in court, the prosecutor was able to establish very little with
the live testimony. Junior was not able to remember much and was embarrassed and
reluctant to testify. Junior was able to identify Chad in the courtroom, but otherwise the
only live testimony from Junior to support the State’s case was that: (1) Junior told his
mother “something” that Chad did to him; (2) he talked to a lady with black hair at the
police department (Sgt. Gomez); (3) he told his mother some of the “things” Chad did; (4)
he saw Chad’s “weenie” only one time; and (5) the “things” that happened with Chad
happened at Chad’s house.
On cross-examination, defense counsel established that: (1) despite Junior telling
Sgt. Gomez that Chad’s weenie was blue, that was false; (2) Junior did not remember
telling anyone that Chad put his whole hand in Junior’s mouth or that Chad “broke his
weenie” with a bug on it; (4) Chad did not cut his weenie and he did not remember telling
anyone that; and (5) Junior did not tell anyone that Chad had a grass weenie or that Chad’s
weenie had a knife on it.
After the State rested, defense counsel called Thomas Boutwell, Chad’s father, as a
witness. Through Thomas, defense counsel sought to undermine the validity of Applicant’s
qualified confessions. Thomas testified that Sergeant Gomez threatened to put so many
charges on Chad that he could not afford bail and would be in jail when his wife died. He
Boutwell - 22
testified that based on this, Thomas thought it best for Chad to come in for the third
interview because “it might help him.” Defense counsel also used Thomas’s testimony in
an attempt to establish that Chad was never alone at his house with Junior.
Given the weaknesses in the State’s case, it was absolutely reasonable for defense
counsel to forgo pursuing complicated and often confusing expert witness testimony and
instead focus on a simple, straightforward defensive strategy of establishing that there was
no credible evidence of any sexual assault and the State failed to meet its burden of proving
the case beyond a reasonable doubt. Applicant cannot prove “that his attorney’s
representation was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy.” Kimmelman, 477 U.S. at 384. Just because this
jury chose to believe the child despite the weaknesses in the State’s case does not mean
that counsel’s strategy was unreasonable. Another jury could have easily reached a
different verdict. Further, in determining whether counsel was ineffective, we are not
allowed to use hindsight in light of a jury’s guilty verdict. Nor are we allowed to examine
isolated acts or omissions of trial counsel. Scheanette v. State, 144 S.W.3d 503, 509–10
(Tex. Crim. App. 2004). The fact that another attorney may have pursued a different
strategy at trial or that a judge or judges believe defense counsel should have pursued a
different course of action is insufficient to prove a claim of ineffective assistance. Id. at
510 (citing McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App. 1992), cert. denied,
508 U.S. 963 (1993)). Accordingly, Applicant has failed to meet his burden to establish
Boutwell - 23
deficient performance at the guilt stage.
B. Even if counsel erred by failing to call experts, Applicant was not
prejudiced because neither of Applicant’s proposed experts
provided any information that would create a reasonable
probability of a different outcome.
Applicant argues that counsel’s performance was unreasonable based on his failure
to call: (1) an expert who could have undermined the credibility of the child victim’s abuse
allegations; and (2) an expert who could have undermined Applicant’s confession to police
investigators based on coercive interview techniques. 9 As shown above, trial counsel’s trial
strategy was reasonable such that counsel was not deficient in this respect. But even
assuming that there was deficient performance, Applicant cannot show prejudice by
proving that there was a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Moreover, to the extent the Court has determined that such experts could have made a
difference at Applicant’s trial, it should have first remanded this case to the habeas court
to conduct a live hearing with these experts so that the State could have tested their
positions through cross-examination, rather than relying on conclusory one-sided
9
The two expert affidavits presented by Applicant are: 1) an affidavit from Dr. Jason Dickinson,
a psychologist, opining that the forensic interviews of the victim in this case were “leading and
suggestive” and employed tactics “known to elicit false responses from children,” and therefore,
the victim’s statements to investigators “may have been the product of suggestive questioning”;
and 2) an affidavit from Dr. Charles Keenan, also a psychologist, opining that the tactics used by
the police interviewer in this case were coercive given Applicant’s mental-health issues and his
extreme emotional distress stemming from his wife’s cancer diagnosis, thus resulting in
Applicant’s statement to investigators being involuntary.
Boutwell - 24
affidavits.
1. Dr. Dickinson, the expert that Applicant claims could have
undermined Junior’s credibility, merely questioned the
interview tactics used but did not significantly undermine
the credibility of the allegations.
Applicant claims trial counsel should have called Dr. Jason Dickinson, a
psychologist from Montclair, New Jersey, with a doctorate in “legal psychology” who,
based on a search of state and federal court cases, has never been qualified by a court as an
“expert” witness. Dr. Dickinson claims in his affidavit that the investigative practices used
with Junior were confirmatory rather than investigative. He even concluded, without
specificity, that the specially-trained and legally-certified CAC Forensic interviewer used
interview tactics similar to Sgt. Gomez. He stated that “the further investigators stray from
established interviewing practices, the less confidence one can have in a child’s testimony,”
and in a conclusory statement provided: “In this case, the interviewing practices grossly
deviated from the generally accepted best-practices.” But he also concluded that, “I of
course [sic] cannot determine the veracity of the allegations in this case.”
Along with other articles, Applicant submitted an article titled “Normative Sexual
Behavior in Children: A Contemporary Sample” to support his position. 10 The goal of the
underlying study was to determine which sexual behaviors were “normal” behaviors in
children ages 2–12. The study was conducted with several hundred parents from Minnesota
10
William N. Friedrich et al., Normative Sexual Behavior in Children: A Contemporary Sample,
Pediatrics Vol. 101 No. 4 (April 1998).
Boutwell - 25
and Los Angeles County, in which the parents reported observations of their participating
children, ages 2–12. The study attempted to screen-out children who had been sexually
abused or whom were suspected of having been sexually abused because the belief was that
sexually abused children would likely exhibit more sexual behaviors than children who
were not sexually abused. “Normal” was defined as a behavior reported in over 20% of the
sample group.
In male children ages 2–5 years, the only reported “normal” sexual behaviors were:
standing too close (29.3%), touching sex parts in public (26.5%), touching breasts (42.4%),
touching sex parts at home (60.2%), and trying to look at people when they are nude
(26.8%). The study found that the “less frequent behaviors are clearly the more intrusive
behaviors” such as: masturbation (which was a separate category from mere touching of sex
parts) (16.7%), putting mouth on sex parts (0.4%), touching adult sex parts (7.8%), and
putting items in rectum (0.4%). Abnormal behaviors also included talking about sex acts
(2.1%) and knowing more about sex (5.3%).
The article cautioned that “[i]t is important to remember that children’s behaviors
must be interpreted in light of individual and family variables. The same is true for sexual
behavior.” The article noted that “mothers with more years of education and who reported
their belief that sexual feelings and [sexual] behavior in children were normal, reported
more sexual behavior” from their children. It further found that “a more relaxed family
attitude regarding nudity or observing sexuality results in children being more likely to
Boutwell - 26
exhibit sexuality.”
The article also included the caveat that despite efforts to screen-out sexually abused
children from the study, the final sample may contain “sexually abused children whose
behaviors inflated” the number of reported sexual behaviors. The article overall suggests
that sexually abused children exhibit more sexual behaviors than children who were not
sexually abused, and that most “normal” children ordinarily do not exhibit extreme sexual
behaviors such as masturbation. In fact, the article concludes that “when a behavior or group
of behaviors is very unusual, [it] raises concerns and should be addressed.”
Looking at Dr. Dickinson’s affidavit in conjunction with the article on “Normative
Sexual Behavior in Children,” these pieces of evidence do not present a reasonable
probability of a different outcome and, in fact, only reinforce the jury’s verdict. Dr.
Dickinson’s affidavit speaks in general terms regarding interviewing and questioning
children and how children can “confabulate accounts.” He does not specifically address
interviewing and questioning children about sexual abuse they may have experienced. His
generic criticism of the interviewing techniques used in this case do not rise to the level of
creating a reasonable probability of a different outcome. Similarly, the article indicates that
boys Junior’s age generally do not know about and do not exhibit the behaviors described
by Junior in his own words. In other words, even if an interviewer uses more confirmatory
practices than investigative ones, a three-year-old male in a home with little to no exposure
to sexuality (which other than co-bathing with his father was the case according to
Boutwell - 27
Bradford’s testimony) 11 would likely not be able to detail the acts of sexual abuse the way
Junior did. For example, in the study only 2.1% of male children ages 2–5 talked about sex
acts and only 5.3% knew more about sex. Yet Junior recounted in his own words an incident
where Boutwell put his hand in Junior’s butt, it hurt, Junior cried, there was blood on
Boutwell’s hand, a watery substance came out of Boutwell’s penis, and then Boutwell gave
him a lollipop.
Accordingly, Applicant cannot show a reasonable probability that Dr. Dickinson’s
testimony and use of the expert study would have had any effect on the jury’s verdict. First
and foremost, while Dr. Dickinson questioned the interview techniques and opined that they
were improper, he did not (and could not) conclude or even suggest that such interview
techniques resulted in Junior falsely asserting sexual assault allegations. Moreover, Dr.
Dickinson spoke in general terms about interviewing children but did not address
interviewing children about sexual assault. And, as mentioned above, the article submitted
by Applicant demonstrates that even if “improper” interview techniques were used, the vast
majority of three-year-old boys would not know enough about sexual behavior to wholly
invent the allegations that Junior made. Had the defense called Dr. Dickinson to testify at
trial, the State on cross-examination surely would have questioned him about the ability of
11
Bradford testified that while he sometimes bathed Junior and other times Junior had showered
with his dad, Junior never witnessed: (1) anyone, including his parents, engaged in any sex acts or
intercourse; (2) anyone, including his father, with an erect penis; (3) anyone masturbating; (4)
anyone ejaculating; or (5) pornography or movies involving sex acts. Bradford also testified that
during the relevant time period, Junior had never been taught any of these aspects of sexuality.
Boutwell - 28
“normal,” non-abused children to describe and discuss sexual behaviors such as the ones
Junior described at the time of his outcry. Thus, any expert testimony on this topic would
have only marginally helped Applicant’s defense by calling into question the interview
tactics, but also would have harmed his defensive theory by reaffirming what the jurors
likely already knew through common sense—that most children do not know about adult
sexual behaviors, and a child’s ability to discuss those concepts is abnormal and possible
evidence of abuse.
At the end of the day, it was clear that the jury made a credibility determination and,
in spite of the issues with certain aspects of his testimony, the jury believed Junior. The jury
observed and heard all of Junior’s outlandish stories along with the more believable ones,
and thus the jury was already well aware of the weaknesses in the State’s case. The jury also
heard Bradford’s account of Boutwell attempting to pick up Junior at the babysitter without
his parent’s permission. Moreover, the jury witnessed Boutwell’s interviews with Sergeant
Gomez in which he essentially admitted to sexually assaulting Junior despite then issuing
only a qualified written confession. Thus, it cannot be said that there was a reasonable
probability based on Dr. Dickinson’s generic expert opinion that the jury would have
disbelieved Junior and reached a different result. As such, even if counsel was deficient for
failing to call experts on investigative techniques of children or children’s sexual behavior,
it did not prejudice Applicant.
Applicant also argues that trial counsel erred in not calling an expert to testify in
Boutwell - 29
response to Bradford’s testimony that Junior’s bedwetting, angry outbursts and
masturbation indicated normal behavior in a three-year-old. This argument fails to take into
account the fact that Bradford’s trial testimony was not available to trial counsel in advance
of trial. Trial counsel cannot be expected to anticipate trial testimony in advance when there
was nothing to indicate it was forthcoming. As such, trial counsel’s failure to find and call
an expert witness in the middle of trial was not error. Further, trial counsel cross-examined
Bradford and had him admit that at the time they occurred, Bradford believed these
behaviors were completely normal. In addition, it is common knowledge that bedwetting
and angry outbursts (known as “terrible twos” or “terroristic threes”) are normal in a typical
three-year-old boy, and the jury would have been aware of this fact. And, as indicated by
the article submitted by Applicant, masturbation is not a normal sexual behavior in a three-
year-old boy.
2. Expert on the Reid Technique
Applicant alleges that counsel erred in failing to call Dr. Charles Keenan, a
psychologist from Commerce, Texas, who claims by affidavit he would have testified that
Sgt. Gomez employed the “Reid Interrogation Technique,” which resulted in a coerced and
involuntary confession. Notably, Applicant provided no curriculum vitae for Dr. Keenan,
and at least one appellate court has upheld the trial court’s exclusion of Dr. Keenan as an
expert witness on an alleged coerced and false confession. 12 I have found no other case
12
In Ruiz v. State, No. 11-18-00267-CR, 2021 WL 3235856 (Tex. App.—Eastland July 30, 2021),
Boutwell - 30
where a trial court found Dr. Keenan qualified as an expert on this topic. 13 The lack of a CV
and the previous exclusion of Dr. Keenan’s testimony regarding a coerced confession calls
into question whether he is qualified to testify on this subject, whether he is credible, and
whether the trial court would have properly excluded his testimony if he was called as a
witness.
Dr. Keenan opines in his affidavit that because of Boutwell’s “extreme emotional
and psychological distress” and history of mental illness (bipolar disorder and PTSD from
childhood sexual abuse), “Boutwell would not be able to maintain reasonable self-interest
and be able to knowingly participate in a prolonged interrogation.” He concludes by stating
Appellant, who was on trial for a non-death-penalty capital murder case, argued that the trial court
erred in excluding Dr. Keenan’s testimony. Appellant hired Dr. Keenan as an expert to testify in
the field of false or coerced confessions. At trial, the State introduced custodial statements made
to law enforcement by Juan Castillo, an accomplice witness. Castillo told law enforcement that he
was part of the robbery but that he did not kill anyone. He identified Appellant as the person who
killed one of the victims. Dr. Keenan was expected to testify that Castillo’s statements to law
enforcement were a “coerced compliant false confession.” The trial court excluded Dr. Keenan’s
testimony. The court of appeals upheld this exclusion stating that “[b]ecause Dr. Keenan’s
proposed testimony would not have helped the jury to either understand the evidence or to
determine a fact in dispute, we hold that the trial court did not abuse its discretion when it excluded
Dr. Keenan’s testimony.” Id. at *10.
13
The only other case I found mentioning Dr. Keenan involved him testifying as an expert
regarding intellectual disability and mental health issues. In Stevens v. State, No. 02-18-00497-
CR, 2019 WL 6767810 (Tex. App.—Fort Worth Dec. 12, 2019, no pet.), Appellant, convicted of
murder, argued as his only issue that the trial court erred in refusing to allow his expert, Dr.
Keenan, to testify that his “mental condition left him without the capacity to act knowingly or
intentionally.” Id. at *1. The trial court allowed Dr. Keenan to testify about Appellant’s intellectual
disability and mental health issues but ruled that he could not testify “to a ‘direct connection’ to
[Appellant’s] mental defects or delusions that would negate [Appellant’s] criminal intent.” Id. The
court of appeals affirmed, stating that “such testimony is inadmissible in accordance with court of
criminal appeals’ precedent prohibiting a diminished-capacity defense.” Id.
Boutwell - 31
that “[t]he interviews are so dramatically egregious that an untrained reasonably intelligent
average citizen would be alarmed by the extent of psychological stress, manipulation and
deceitful inducements that Sgt. Gomez applies to secure a confession.” Notably, Dr. Keenan
does not suggest or opine that the “confession” was false, and he conveniently fails to take
into account the fact that Boutwell was never detained, in custody, nor compelled by Sgt.
Gomez to give any of the three separate interviews. Further, Dr. Keenan fails to take into
account that Boutwell had prior experience with the criminal justice system. Before the
current charge, Boutwell had previously been charged in seven other misdemeanor and
felony cases and had two prior misdemeanor convictions. According to articles submitted
by Boutwell, the “Reid Technique” has the most coercive effect when used against juveniles
and individuals who are inexperienced with the criminal justice system.
Regarding Dr. Keenan’s opinion that Boutwell’s emotional state rendered him
unable to maintain self-interest when questioned using the Reid Technique, it is clear that
that was not the case. Boutwell voluntarily appeared for three separate interviews and was
not in custody at any point. He even sua sponte volunteered to take a polygraph. Sgt. Gomez
never brought Boutwell in for questioning. Sgt. Gomez made it clear that if a judge signed
a warrant, she would have to arrest him, but otherwise he was free to leave. During each of
the interviews, Boutwell was allowed to have his father right next to him. Boutwell took
cigarette breaks when he wanted to. He knew that each interview was video recorded. He
also knew he could stop the interview at any time and ask for an attorney. In fact, at one
Boutwell - 32
point, Sgt. Gomez told Boutwell that she was going to stop the interview so he could get an
attorney, but Boutwell declined and continued with the interview.
In the first voluntary, non-custodial interview, Boutwell vigorously denies the
allegations; steps out of the room and in an incredulous tone tells his father what he has
been accused of; proclaims to Sergeant Gomez that having been sexually abused as child
himself, he would never touch a child; offers to take a polygraph; and refuses to give a
written statement.
Eleven days later, with plenty of time to think about it and “recover” from the effects
of the Reid Technique, Boutwell appears with his father for a second voluntary interview.
In this interview, from the very start, Boutwell has adopted a different demeanor. Instead of
outright denial, Boutwell claimed he had been experiencing blackouts caused by drug use
which was triggered by a personal crisis. He then spoke at length and in detail with great
emotion, with very little prompting or input by Sgt. Gomez, about the childhood sexual
assault he experienced, about his wife dying of cancer, and mental issues he had experienced
over the years, among other things. At the end of the interview which was dominated by
Boutwell’s unprompted decision to open up about all of his personal crises with very little
input or questioning by Sgt. Gomez, Boutwell no longer vigorously denied Junior’s
accusations. Instead, he maintained in a written statement that he had “no recollection,” he
“didn’t do it,” but he needed to “get clean.”
Then, two days later, at the request of Boutwell’s father, Sgt. Gomez agreed to allow
Boutwell - 33
Boutwell to voluntarily come in for a third interview. From the start of this interview,
Boutwell’s demeanor was again changed. He again had his father with him, wore a large
cross, and seemed resigned from the beginning that he was going to confess, would be
arrested, and CPS may be taking action. This change in demeanor did not happen as the
result of questioning by Sgt. Gomez during the interview; it was there at the start of the
interview. In this interview, Boutwell never denied Junior’s allegations. He hinted several
times that he may not remember what happened or referred to “if” it happened, but through
prompting by his father and Sgt. Gomez, he finally confessed that he touched Junior.
Despite his verbal confession, Boutwell still qualified his written confession stating that
while he experiences “blackouts,” he takes responsibility for what happened. Thus, even
though Boutwell verbally confessed to touching Junior, he still refused to put it explicitly
in writing. This series of interviews shows that Sgt. Gomez’s interview techniques did not
exploit Boutwell’s emotional state to the point that it wore him down and overcame his self-
interest. Instead, it was Boutwell’s own conscience and hope of avoiding more serious
charges that caused him to go back for additional interviews until he was able to confess.
Regarding Dr. Keenan’s statement that the “interviews are so dramatically
egregious that an untrained reasonably intelligent average citizen would be alarmed” and
would realize that Boutwell’s confession was coerced and involuntary, Dr. Keenan fails to
realize that the jury did view these interviews—nearly 90 minutes of them in total. The jury
heard about Boutwell’s wife dying of cancer, the sexual and emotional abuse Boutwell
Boutwell - 34
experienced as a child, his ongoing struggles with depression and drug addiction, and his
mental hospital stays. They also observed Boutwell’s emotional distress during his
interviews with Sgt. Gomez. And they heard and observed when Sgt. Gomez did use some
questionable interview techniques. Thus, while an expert could have pointed out these
techniques and testified that Applicant was emotionally vulnerable to the interviewer’s
tactics, the jury could reach the same conclusion without any expert testimony. Dr. Keenan
even admits to this in his affidavit. By the jury’s conviction and 99-year sentence, the jury
determined that regardless of any questionable tactics employed by Sgt. Gomez, Boutwell’s
confession was not a false coerced confession but rather was probative and supported
finding him guilty.
In sum, given the lack of credentials for Dr. Keenan, the facts contradicting some
of his statements, and the fact that the jury heard and observed the videotaped interviews,
there is no reasonable probability that the trial outcome would have been different with Dr.
Keenan’s testimony (if the trial judge had found him to be qualified). Accordingly, there
was no prejudice in trial counsel’s failure to call Dr. Keenan, and this Court should not
disturb the jury’s verdict on this basis.
It is also worth noting that the Court’s decision to reverse and remand for a new trial
because trial counsel failed to call an expert on the “Reid Technique” is likely to open the
floodgates to a tsunami of appeals and writs. The “Reid Technique” articles offered by
Boutwell opine that the “Reid Technique” of interviewing suspects may lead to false
Boutwell - 35
confessions. Many of these same articles, however, admit that the Reid Technique has been
used as the main interview technique by law enforcement in the United States for over 60
years. While, according to some of the articles, there seems to be a minority of jurisdictions
moving away from using the Reid Technique, it is still the primary interview technique
taught to and used by law enforcement in the vast majority of jurisdictions to this day.
Despite the long-standing and prevalent use of the Reid Technique, Applicant suggests that
trial counsel’s failure to call an expert to address how the Reid Technique can result in
false confessions amounted to IAC. If that’s the case, then virtually every time trial counsel
fails to call such an expert when a defendant has confessed after being interviewed by law
enforcement, he or she has committed IAC. Are we ready to find reversible IAC in all of
these cases? That’s certainly what we will be tasked with given the current decision by this
Court.
IV. Conclusion
In viewing defense counsel’s trial strategy, not in hindsight in light of a guilty
verdict, but at the time counsel made his trial decisions, counsel’s actions did not fall below
the standard of reasonably-effective assistance. Here, counsel focused on the bizarre and
nonsensical statements made by the only witness who could directly testify to Applicant’s
guilt—a three-year-old boy—and stressed that there was no reliable evidence upon which
the jury could find Applicant guilty beyond a reasonable doubt. Both the court of appeals
on direct appeal (albeit with respect to a different IAC claim) and the habeas court reviewed
Boutwell - 36
the record and determined that as to the guilt phase of trial, defense counsel rendered
reasonably-competent representation. A defendant is entitled to a fair trial, not a perfect
trial. Ex parte Flores, 387 S.W.3d 626, 634 (Tex. Crim. App. 2012). In light of the evidence
adduced at trial, trial counsel relied on a reasonable trial strategy and did not fall below an
objective standard of reasonableness by failing to call the proposed expert witnesses.
But even if trial counsel had performed deficiently, a finding of IAC would still
require proof that there was a reasonable probability of a different outcome had those
experts actually testified at his trial. As addressed above, Applicant has failed to meet this
burden of proof.
Dr. Dickinson’s testimony was very general with respect to his critique of the
interview tactics used in this case, and his opinion was undercut by the article Applicant
submitted. And, even despite this article, the jury heard and observed all of Junior’s
outrageous allegations and chose to believe his more realistic ones instead. Dr. Dickinson’s
generalized opinion and his ultimate concession that he could not “determine the veracity
of the allegations” was unlikely to have any effect on the jury’s credibility assessment.
With respect to Applicant’s other expert, Dr. Keenan, even assuming that he was
qualified to provide testimony here, his opinion that Boutwell’s confession was coerced
and involuntary was not supported by the record. He does not address the fact that Boutwell
gave three separate voluntary and non-custodial interviews over a two-week time period;
that Boutwell insisted on going forward with the interview even when Sgt. Gomez tried to
Boutwell - 37
stop it and get Boutwell an attorney; and that he sua sponte volunteered for a polygraph.
In fact, the third interview was initiated by Boutwell’s father. Dr. Keenan’s opinion also
ignores the fact that Boutwell has had quite a bit of experience with the criminal justice
system having had seven prior misdemeanor and felony charges resulting in two prior
misdemeanor convictions. Finally, Dr. Keenan’s opinion ignored the fact that the jury
heard and observed the videos of all three interviews, leaving the jury to make its own
evaluation of whether the “interviews [were] so dramatically egregious” so as to alarm the
jury “by the extent of psychological stress, manipulation, and deceitful inducements”
therein. The jury’s guilty verdict and 99-year sentence demonstrate that the jury did not
harbor the same concerns as Dr. Keenan about the interview tactics employed.
Accordingly, even if trial counsel was deficient in failing to call these experts, such error
was not prejudicial.
In closing, I must also dissent from the Court’s failure to remand this case for a live
habeas hearing. Applicant submitted only affidavits for these experts. Based on the habeas
court’s finding that trial counsel did not render deficient performance in failing to call the
experts, it did not permit Applicant’s witnesses to testify at the habeas hearing. Thus, the
State was not afforded an opportunity to cross-examine and challenge the experts’
qualifications, determine whether and to what degree these experts would have advanced
counsel’s defense strategy, or whether the expert’s testimony would have likely changed
the outcome of the case. By relying solely on these affidavits, the Court’s decision is based
Boutwell - 38
on impermissible speculation about the weight and credibility of the experts’ opinions.
For all the foregoing reasons, I vigorously dissent from the Court’s order granting
Applicant a new trial. I would instead grant Applicant a new trial on punishment only based
on counsel’s failure to conduct an adequate investigation for mitigating evidence.
Filed: December 8, 2021
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