Joshua Curtis Dryer v. the State of Texas

Opinion issued April 13, 2023

In The

Court of Appeals

For The

First District of Texas

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NO. 01-22-00201-CR

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JOSHUA CURTIS DRYER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Case No. 17-CR-3187

O P I N I O N

A jury found Joshua Curtis Dryer guilty of the crime of continuous sexual

abuse of a young child and sentenced him to 35 years of imprisonment. Dryer

appeals, arguing his trial lawyer was ineffective in failing to object to the

admissibility of an extraneous sexual act directed toward another who was not a

child at the time. We reverse the trial court’s judgment and remand for a new trial.

BACKGROUND

Introduction

In 2018, a grand jury indicted Dryer for continuous sexual abuse of a young

child. See TEX. PENAL CODE § 21.02(b). The indictment alleged that between August

2009 and August 2015 Dryer sexually abused his daughter, I.D., twice or more by

intentionally and knowingly touching her genitals and penetrating her sex organ with

his finger, the former conduct constituting the offense of indecency with a child and

the latter conduct constituting the offense of sexual assault of a child.

Dryer pled not guilty. In February 2022, the case was tried to a jury.

Pretrial Hearing on Kaitlyn Medlin’s Testimony

Before trial, the State gave notice that it intended to introduce evidence of an

extraneous offense, specifically that Dryer had committed assault by contact against

a different victim. According to the notice, Dryer had done so by touching and

rubbing the leg of Kaitlyn Medlin in August 2017.

At the time of trial, Medlin was 22 years old. She initially took the stand at a

hearing outside the presence of the jury so that the trial court could assess the

admissibility of her proposed trial testimony. During this hearing, Medlin testified

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that she had been longtime friends with I.D. in the past. Medlin had spent the night

at I.D.’s house quite a few times back then.

The very last time Medlin spent the night at I.D.’s house was for a slumber

party or sleepover when she was “about 16.” While the other girls were upstairs,

Medlin watched a movie downstairs with Dryer and I.D.’s brother, Zeke. Zeke had

fallen asleep. Medlin was sitting next to Dryer on the couch. At some point during

the movie, Dryer placed his hand on her upper thigh over her shorts and started

moving it toward her “private area.” In response, Medlin “shot up off the couch” and

“ran upstairs.” She said she did not think Dryer saw her “run up the stairs crying.”

Once upstairs, Medlin told I.D. what had happened. Medlin said she was

crying, and that I.D. “looked terrified,” as if she was “about to cry.” Medlin said she

had not ever seen I.D. appear so scared. Later that night, I.D. confided that Dryer

had done inappropriate things to her.

Medlin spoke to the police about the sleepover incident. She was not sure

when but thought she did so about six months afterward. Medlin sat for this interview

with the police in connection with the allegations of sexual abuse that I.D. had made

against Dryer. Medlin had not gone to the police contemporaneously with the

sleepover incident. Nor had she reviewed the statement she gave to the police before

trial. Medlin acknowledged that she had told the detective who interviewed her that

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she had overreacted to the sleepover incident. But Medlin denied that she had told

the detective that Dryer’s touching was non-sexual in nature.

After Medlin testified, the State argued her testimony was admissible under

Article 38.37 of the Texas Code of Criminal Procedure on the basis that Dryer’s

touching of Medlin was a sex act committed against another child. Among other

things, the State observed that because there was no medical evidence in this case,

the prosecution essentially rested on witness credibility, which made evidence that

Dryer had made a sexual advance on another child “extremely important” because it

corroborated I.D.’s allegations of abuse.

The defense objected to Medlin’s testimony, but the basis for its objection is

not altogether clear. The basis of the objection appears to have been that because

Medlin had told the detective who interviewed her that Dryer’s touching was non-

sexual, the slumber-party incident was irrelevant or that its relevance was

substantially outweighed by the danger of unfair prejudice.

The trial court ruled that Medlin’s testimony was admissible.

Trial Testimony

State’s Case in Chief

Angela Black, I.D.’s mother, was the first witness. She testified that she

previously had been married to Dryer for about 17 years. Together, Black and Dryer

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had two children, a daughter, I.D., and a son, Zeke. At the time of trial, I.D. was 20

years old and Zeke was 17 years old.

When I.D. was in junior high school—between the ages of 12 and 14—Black

noticed that I.D. had become depressed and started cutting herself. At the time, Black

thought “it was kind of just normal teenage stuff.” She did not notice anything amiss

between Dryer and I.D.

Black first became aware that something was amiss when Child Protective

Services contacted her in August 2017. Afterward, the police removed Dryer from

the home, and Black filed for separation. The children remained with her. Dryer was

disallowed any further contact with the children due to the nature of I.D.’s

allegations against him.

Black recalled the sleepover, which was for I.D.’s sixteenth birthday. Black

said that I.D. and Medlin were close friends at the time. Medlin was “a bit older”

than I.D., but Black did not know the exact age difference between the two girls.

Black did not have any contemporaneous awareness of or knowledge about the

sleepover incident involving Medlin.

Black knew the general nature of I.D.’s allegations of sexual abuse by Dryer.

But Black did not know the specifics and had not discussed the details with I.D.

Though I.D.’s allegations shocked Black, she testified that she believed her

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daughter. According to Black, I.D. did not have a history of lying and she would not

lie about something of this nature.

Medlin then took the stand. She testified she was 22 years old.

According to Medlin, she and I.D. were close friends for a long time in their

teens. At one point in time, the two had been best friends. During this period of time,

Medlin also got to know I.D.’s family.

Medlin spent time at I.D.’s home. In doing so, Medlin had the opportunity to

observe I.D. interacting with her father, Dryer. Medlin did not see anything out of

the ordinary, such as sexual contact or the like. I.D. and Dryer appeared to have a

normal father–daughter relationship.

In August 2017, Medlin spent the night at I.D.’s home with several other girls.

Medlin testified that she was “around 16” at the time.

At one point during the sleepover, I.D. and the other girls were in her room

upstairs while Medlin was in the living room downstairs watching a movie. Medlin

was seated on one of two couches. I.D.’s brother, Zeke, who fell asleep during the

movie, was lying on the other couch. Dryer later joined them, seating himself on the

couch next to Medlin.

The State asked Medlin whether something happened between her and Dryer

while watching the movie. The defense then urged its “original objections” to

Medlin’s testimony and asked for a limiting instruction. The trial court overruled the

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objection but instructed the jury that Medlin’s testimony concerned a separate

offense, which the trial court was admitting into evidence for any bearing it had on

any relevant matter in the case, including Dryer’s character and acts performed in

conformity with his character.

Medlin then testified that as the credits of the movie were rolling, she noticed

that Dryer’s hand was on her thigh. Dryer then began moving his hand up her thigh,

to where her shorts started covering her thigh, and “towards” her “private area.”

According to Medlin, Dryer’s hand never went under her shorts or even over them.

When Dryer’s hand reached the point where her shorts began to cover her thigh,

Medlin then “stood up.” Medlin said she “jumped off the couch” and briskly walked

upstairs.

Medlin went straight to I.D.’s room and began crying. She told the girls what

happened. In response, I.D. looked scared. Medlin and I.D. then had a conversation

about the incident in the hall.

About a week after the incident, Medlin told her parents about it. Six months

or so after the incident, Medlin spoke with a detective. But Medlin testified that when

she spoke with the detective, she did not describe the incident as seriously as it was

because she was young at the time. Due to her youth, Medlin said she did not

appreciate what had happened.

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The State introduced into evidence a video recording of Medlin’s interview.

But it was not played for the jury when it was admitted into evidence.

On cross-examination, Medlin agreed that she told I.D. on the night of the

sleepover that she probably overreacted to the incident with Dryer. Medlin also

agreed that she had told the detective during the subsequent interview that Dryer’s

touching of her leg was not sexual in nature. Medlin, however, no longer felt like

she had overreacted at the time. She testified that Dryer’s contact was not accidental

or innocent.

On the night of the sleepover, I.D. did not disclose any sexual abuse to Medlin.

Medlin said I.D. first told her about the abuse afterward.

Medlin said on cross-examination that she was born in November 1999. So,

she was almost 18 years old when Dryer touched her.

Detective W. Higgs of the Friendswood Police Department, who was assigned

to investigate the abuse allegations against Dryer, testified next.

As part of the investigation, I.D. was forensically interviewed at the Child

Advocacy Center in Galveston. This interview was conducted by a non-peace officer

who was trained to interview children in sex abuse cases. Higgs arranged this

interview, but he was not present during it. Instead, he watched a recording of the

interview after it had taken place.

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Because the sexual abuse that I.D. alleged had taken place a year or more

beforehand, Higgs did not arrange for a sexual assault examination.

As part of his investigation, Higgs also interviewed Medlin about the

sleepover incident. This interview was recorded on video. The interview took place

in October 2017. Higgs had not reviewed the video recording of the interview

between then and the date of the trial.

Higgs also interviewed Black, I.D.’s mother, by telephone.

Finally, I.D. testified. She was 20 years old at trial.

I.D. testified that Dryer began sexually abusing her when she was 8 years old.

She had her own bedroom, and that is where she was abused. She slept in a loft bed

at one point, but she later slept in a daybed. All the abuse she recalled took place

when she slept in the latter.

I.D. said the abuse took place late at night while she was trying to sleep. Dryer

would enter her room, kneel by her bed, and move her blankets and clothes aside

and touch her. Specifically, he touched her vagina with his fingers and inserted them

into her vagina. Dryer engaged in this conduct from the time I.D. was 8 years old

until she was 13 years old. She said this happened at least two to five times per month

during this period. I.D.’s memories of the individual instances of abuse during this

period were “kind of blurred together because they were very similar.”

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When this happened, I.D. would pretend to be asleep. She did so because she

was afraid and “froze as a trauma response.” She kept her eyes closed but peeked,

which is how she knew it was Dryer.

I.D. said Dryer tried to place her hand on his penis on one occasion. Her hand

grazed his penis, but she pulled away and pretended to stir awake, at which point he

stopped and left her bedroom. I.D. also recalled Dryer touching her buttocks over

her clothes on other occasions. But these incidents occurred while she was awake,

and she and Dryer were watching movies together. I.D. said Dryer would place and

keep his hand on her buttocks. She testified that one time Dryer also squeezed her

buttocks.

I.D. also recalled Dryer touching himself sometimes. She did not see his penis,

but she could “see his arm moving” and “heard noises.”

Eventually, the abuse ended. I.D. attributed the end of abuse to a change of

residence. Her family moved in with her paternal grandmother and resided there for

about one-and-a-half to two years. During this period, I.D.’s bedroom had a door

that she could lock. When I.D. was 15 years old, her family moved back into their

own home. Dryer did not resume sexually abusing I.D. after they moved back into

their own home.

Even though the abuse ended, I.D. continued to experience its effects. She

testified that she was “extremely depressed,” “extremely anxious,” and “self-

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harming.” She was “not coping very well” and did “poorer in school.” I.D. testified

she “was having a really hard time.”

I.D. first told someone—her then boyfriend—about the sexual abuse when

she was 15 years old. She did not tell him all the details. And she asked him not to

tell anyone because she was afraid of what would happen to her family and her

relationships with family members if he did so.

Not long afterward, I.D. indicated to her paternal grandmother that she had

been sexually abused. Her grandmother initially asked I.D. if the abuser was her

boyfriend, and I.D. told her it was not. Her grandmother then asked if it was her

father, and I.D. “nodded her head” in reply. Once again, I.D. did not divulge details

about the nature of the sexual abuse. Her grandmother asked I.D. if she wanted to

go to the police. I.D. said she did not because she was still afraid to disclose the

abuse to others.

I.D. recalled the sleepover, when Medlin and several other girls spent the night

at her family’s home. This sleepover was for I.D.’s sixteenth birthday. At the

sleepover, I.D. and all the girls other than Medlin were upstairs in her bedroom at

one point while Medlin remained downstairs watching a movie. Medlin later “came

upstairs crying.” Medlin told I.D. that Dryer “had touched her on her upper thigh”

and had moved his hand “up her leg.” I.D. testified that she did not tell Medlin that

night that Dryer had sexually abused her.

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The next day, I.D. told a different friend that she had been sexually abused.

I.D. asked her friend not to tell anyone about the abuse.

A little more than a week after the sleepover, I.D. was questioned by an

employee of Child Protective Services about the sexual abuse. This CPS employee

showed up at her home accompanied by a police officer. I.D. was not expecting this

visit. I.D. was asked whether she was being sexually abused and she “nodded.” But

I.D. did not disclose any details about the abuse in her conversation with the CPS

employee.

During a subsequent interview at the Child Advocacy Center in Galveston,

I.D. disclosed the details of the sexual abuse. I.D. testified that she disclosed the

same details that she had disclosed in her trial testimony.

Defense Witnesses

The first witness called by the defense was Elizabeth Marsalis, who is Dryer’s

stepsister. Her father is married to Dryer’s mother.

Marsalis testified that her children have spent time with Dryer, and Marsalis

has no concerns about allowing Dryer to spend time with her daughter alone. She

has seen Dryer in the presence of young and teenage girls and has never seen him

behave inappropriately with them. Marsalis further testified that she knows Dryer to

be peaceful, law-abiding, and honest.

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John Brown then testified. Brown’s partner is Dryer’s brother, and Brown has

known Dryer for about a decade. Brown testified that Dryer is a peaceful, law-

abiding, truthful, and trustworthy person. He has seen Dryer and I.D. together and

never saw anything inappropriate.

Robert Garcia took the stand next. Garcia is Dryer’s stepbrother. Garcia

testified that Dryer is honest, trustworthy, and law-abiding. Garcia described Dryer

as a loving, caring father. Garcia said he had never seen I.D. behave as if she was

scared of Dryer.

Paula Masone, who has been friends with Dryer for more than two decades,

also testified. Like Garcia, Masone never saw I.D. behave as if she was afraid of

Dryer or behave in an aloof or standoffish manner. As a mother of a young girl,

Masone said she would have noticed such behavior. Masone said that Dryer is

honest, law-abiding, and a perfect gentleman.

Robin Garcia then testified. She is Dryer’s mother, I.D.’s paternal

grandmother. Garcia testified that Dryer had never exhibited behavioral problems as

a child and did not have any problems with the law.

Garcia testified that she has spent quite a bit of time around Dryer, his wife,

and their children. They lived with her for almost two years. And Garcia had a close

relationship with I.D. before these allegations.

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Garcia denied ever having a conversation with I.D. in which I.D. said that she

was being sexually abused. According to Garcia, I.D. complained that people came

into her room, including Dryer. But there was no implication of any sexual

impropriety by Dryer. The subject of sexual abuse allegations in general did come

up during this conversation—as part of a discussion of the #metoo movement—and

Garcia then asked if anyone had ever touched I.D. Garcia said that I.D. responded

“no.”

Garcia had seen Dryer around I.D. and other young girls on many occasions.

Garcia said she never saw him behave inappropriately.

On cross-examination, Garcia conceded that there is nothing I.D. could ever

say that would convince Garcia that Dryer had sexually abused I.D.

Gilbert Garcia, Robin’s husband and Dryer’s stepfather, testified next.

Dryer’s family lived with Garcia and his wife for two years. Garcia testified that he

did not see anything that would have indicated “that there was a lack of love”

between Dryer and I.D. He further testified he never saw anything indicating

something was amiss in their relationship.

After Gilbert Garcia testified, the defense requested that the video recording

of Medlin’s interview with Detective Higgs be played for the jury. Though it had

previously been admitted into evidence, it had not yet been played.

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Per the recording’s date-time stamp, the interview took place in October 2017.

Medlin began by stating her name and date of birth, November 16, 1999. So, she

was 17 years old at the time of the interview.

During the interview, Medlin described Dryer as being “handsy” or “into hugs

and all that.” But she thought this was just him “being friendly.” On the night of the

sleepover at I.D.’s home, she began watching a movie with I.D.’s younger brother

and one of his friends in the living room. Medlin sat on the couch next to them. Later,

Dryer joined them and sat down next to Medlin. Eventually, she noticed that Dryer

had his hand on her upper thigh, over her pants. In response, Medlin said she “kinda

froze” because it was “strange.” After a while, she “scooted” closer to the two boys,

and Dryer then began moving his hand up and down her thigh and rubbing it with

his thumb. He also touched her side (torso) but did not touch her elsewhere.

Medlin told the detective that after a while the two boys went upstairs. She

did not think that they had seen Dryer touching her, as she was sitting under a

blanket. Once it was just Medlin and Dryer in the living room, she did not know

what to do because she was “really freaked out.” But when the movie ended, Medlin

“jumped off the couch” and “ran upstairs” where she then told I.D. what had

happened to her.

When Medlin told I.D., I.D. “didn’t really say anything.” Medlin said that I.D.

gave her “this look.” Looking back, Medlin said, this should have cued her in that

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“something wasn’t right.” According to Medlin, I.D.’s facial expression seemed to

convey a sentiment something along the lines of: “Oh great, this is happening again.”

Finally, Dryer took the stand to testify in his own defense.

About the August 2017 sleepover, Dryer testified that he joined Medlin, his

son, Zeke, and his son’s friend in watching a movie out of concern that it would be

best if boys and girls did not mingle at night unsupervised. According to Dryer, there

were two couches in the living room but all four of them were sitting on the same

one during the movie. Dryer sat on one end of the couch next to Medlin. He said that

his wife, Black, was also in the living room, on the second couch, while they watched

the movie.

Dryer denied that he touched Medlin’s inner thigh. He also indicated that he

did not intentionally touch her elsewhere in any manner:

Q. Did you ever touch her at all?

A. Not that I’m aware of.

Q. I mean, is it possible you touched her on the shoulder or something?

A. It—I guess it’s possible, but I don’t recall. I mean, we’re watching a

jump-scary movie. And pretty—you know, everybody would jump

every now and then. I don’t know—I don’t know if I accidentally

bumped her or something.

Dryer said that he had heard Medlin’s testimony about leaving the room

crying. But he said he did not see anything resembling that.

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After midnight, Dryer testified, he found Medlin in Zeke’s room on the floor

“under a blanket” with Zeke’s friend. Dryer told her to leave Zeke’s room and stay

separate from the boys the rest of the night. According to Dryer, Medlin “got mad”

and told him “no.” At that point, Dryer went to his wife and asked her to handle the

situation, which his wife then did.

As to I.D.’s allegations, Dryer categorically denied them. Asked why she

would make them, Dryer responded, “I have no idea.”

Dryer maintained that I.D. had a loft bed from the time she was about seven

or eight years old until they moved into his mother’s home. This bed was elevated

off the ground high enough for Dryer to almost stand beneath it. The mattress was

basically at eye-level for him when standing. He said I.D. did not have a daybed

during this time. Thus, he maintained it was impossible for him to have knelt beside

her.

State’s Rebuttal Witnesses

Quinten Chambers, a friend of Zeke’s, testified. Chambers stated he had

known Zeke for 10 or 11 years as of the time of his testimony, had been in Dryer’s

home, and that when he was there I.D. did not have a loft bed. But he conceded that

on Facebook he had seen old photographs, from sometime before he had met Zeke,

in which I.D. had a loft bed in her bedroom.

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Black retook the stand next. Since testifying during the State’s case in chief,

Black had gone through old family photographs to ascertain when I.D. switched

from sleeping in a loft bed to the daybed. The State introduced several of these

photographs, taken between 2012–14, into evidence. Some of these showed I.D. in

a daybed in her bedroom in the family’s home when she was between the ages of 11

and 12 years old. One of the photos showed Dreyer and I.D. in her bedroom with a

daybed during the same general timeframe, when she was either in the fifth or sixth

grade. Black said I.D. had the daybed well before these photographs as well.

Black also testified that on the night of the August 2017 sleepover, she did not

watch the movie with the others. She had already gone to bed.

Elizabeth Wethers then testified. Wethers had been Black’s best friend since

at least junior high school. She stated that Black had given her I.D.’s loft bed

sometime in 2013, when I.D. got a new one. In conjunction with her testimony, the

State introduced a November 2013 Facebook post made by Wethers showing the loft

bed in her home.

Finally, the State called Zeke Dryer. Zeke, I.D.’s brother and the defendant’s

son, was 17 years old at trial. According to Zeke, I.D. stopped using a loft bed

“sometime before she even went into junior high.”

Zeke also testified about the sleepover. He testified that his mother, Black,

had gone to bed when he and others watched the movie. According to him, he, his

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friend, and Medlin all went upstairs at the same time, before the movie ended. He

did not notice Medlin crying. In addition, Zeke denied that Dryer caught Medlin with

his friend or that a confrontation between Dryer and Medlin occurred that night.

Jury Verdict and Trial Court’s Judgment

The jury found Dryer guilty as alleged in the indictment and assessed his

punishment at 35 years of confinement. The trial court rendered a judgment of

conviction in accord with the jury’s verdict.

DISCUSSION

The trial court admitted into evidence Medlin’s testimony under Article 38.37

of the Texas Code of Criminal Procedure. Under this article, in certain prosecutions,

including prosecutions for the continuous sexual abuse of a young child, the trial

court may admit into evidence “for any bearing the evidence has on relevant matters,

including the character of the defendant and acts performed in conformity with the

character of the defendant,” evidence that the defendant committed any of a number

of enumerated separate offenses. TEX. CODE CRIM. PROC. art. 38.37, § 2(a)(1)(B),

2(b). The enumerated separate offenses include sex trafficking of a child, continuous

sexual abuse of a young child or disabled individual, indecency with a child, sexual

assault of a child, aggravated sexual assault of a child, online solicitation of a minor,

sexual performance by a child, possession or promotion of child pornography, and

an attempt or conspiracy to commit any of the preceding offenses. Id. § 2(a).

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On appeal, Dryer argues that his trial lawyer provided ineffective assistance

by failing to object that Medlin’s testimony was inadmissible under Article 38.37

because she was 17 years old when Dryer allegedly touched her upper thigh. Because

Medlin was not a child at the time and Article 38.37 only allows for the admission

of certain sex-related offenses committed against children, Dryer maintains that the

trial court would have had no choice but to sustain such an objection. Thus, had his

trial lawyer made this objection, the jury would never have heard Medlin’s

testimony, which was damning evidence from a second accuser in what otherwise

would have been a trial that boiled down to Dryer’s word versus his daughter’s. But

for Medlin’s testimony, Dryer urges, the jury might not have found him guilty.

Law Applicable to Ineffective-Assistance Claims

The Sixth Amendment to the United States Constitution guarantees the right

to counsel in criminal prosecutions. Cannon v. State, 252 S.W.3d 342, 348 (Tex.

Crim. App. 2008). This guarantee entails the right to effective assistance. Id.

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

prove that his trial lawyer’s performance was deficient and this deficiency

prejudiced the defense. Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018).

The defendant bears the burden of proving deficient performance and prejudice by

a preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010). Unless the defendant proves both deficient performance and prejudice,

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we cannot sustain his claim of ineffective assistance of counsel. Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). The purpose of this test for ineffective

assistance is to ascertain whether defense counsel’s conduct so undermined the

proper functioning of the adversarial process that it calls into question the reliability

of the jury’s verdict. Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013).

Defense counsel’s performance is deficient if it falls below an objective

standard of reasonableness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App.

2017). Judicial scrutiny of counsel’s performance is highly deferential. Mata v.

State, 226 S.W.3d 425, 428 (Tex. Crim. App. 2007). There is a strong presumption

that counsel’s performance was reasonable, and the defendant must overcome this

strong presumption to prevail on an ineffective-assistance claim. Prine, 537 S.W.3d

at 117. Therefore, any deficiency in counsel’s performance must be firmly founded

in the record. Id. It is not enough that counsel’s performance may seem questionable

in hindsight. Id. We cannot find that counsel’s performance was deficient based on

conjecture. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). Nor

can we infer that counsel’s performance was deficient based on portions of the record

that are unclear. Mata, 226 S.W.3d at 432. Rather, the record must affirmatively

show that counsel’s performance was deficient. Prine, 537 S.W.3d at 117.

It is rare that the trial record, standing alone, is sufficient to show deficient

performance by counsel. Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App.

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2013). The reasonableness of counsel’s decisions often depends on facts that do not

appear in the record. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

Hence, counsel ordinarily should be afforded the opportunity to explain his conduct

before we find that his performance was deficient. Nava, 415 S.W.3d at 308. When

counsel has not been given this opportunity, we cannot find counsel’s performance

deficient unless his conduct was so outrageous that no competent lawyer would have

engaged in it. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). That

is, the record must show that counsel’s performance fell below an objective standard

of reasonableness as a matter of law and that no reasonable trial strategy could justify

his deficient performance. Lopez, 343 S.W.3d at 143. We generally will assume that

counsel had a reasonable strategic motive if any reasonable trial strategy can be

imagined. Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013).

Deficient performance by defense counsel prejudices the defendant when

there is a reasonable probability that but for counsel’s deficient performance the

trial’s outcome would have differed. Nava, 415 S.W.3d at 308. A reasonable

probability is one that undermines our confidence in the trial’s outcome. Id.

A defendant is not entitled to errorless representation. Frangias v. State, 450

S.W.3d 125, 136 (Tex. Crim. App. 2013). We therefore must review an ineffective-

assistance claim with an eye toward the totality of the representation. Id. A single

error will seldom suffice to prove ineffective assistance. Villa, 417 S.W.3d at 463.

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A single error does so only if it is both egregious and had a seriously deleterious

impact on counsel’s representation as a whole. Frangias, 450 S.W.3d at 136.

Analysis

Deficient Performance

The record shows Medlin was 17 years old when Dryer allegedly touched her

thigh at the sleepover. At the beginning of her recorded interview, Medlin stated she

was born on November 16, 1999. Uncontradicted testimony shows that the sleepover

took place in August 2017. Together, these facts establish that Medlin was not a

child for purposes of any of the separate sex offenses that conceivably could apply

to Dryer’s touching of Medlin that could make her testimony admissible under

Article 38.37 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

art. 38.37, § 2 (rendering admissible certain enumerated separate offenses, including

continuous sexual abuse of young child, indecency with child, sexual assault of

child, and aggravated sexual assault of child); PENAL §§ 21.02(a)(1), 21.11(a),

22.011(c)(1), 22.021(b)(1) (defining “child” for purposes of preceding offenses or

otherwise limiting their applicability to those “younger than 17 years of age”).

Consequently, Medlin’s testimony was not admissible under Article 38.37.1

1

We note that “child” is not universally defined as one younger than 17 years of age for

purposes of sex-related offenses against children. For example, online solicitation of a

minor defines “minor” as one “who is younger than 17 years of age” or “whom the

actor believes to be younger than 17 years of age.” PENAL § 33.021(a)(1). And several

sex-related offenses, including sex trafficking, sexual performance by a child, and

23

Thus, the question is whether Dryer’s trial lawyer was deficient in failing to

object that Medlin’s testimony was categorically inadmissible under Article 38.37.

Because Dryer’s counsel has not been afforded the opportunity to explain his failure

to object on this ground and the record does not otherwise disclose counsel’s

thinking on the subject, we can only answer this question in the affirmative if

counsel’s failure to make this objection was so outrageous that no competent lawyer

would have failed to object on this ground. See Menefield, 363 S.W.3d at 593.

We hold that no competent lawyer would have failed to make this objection

because the inadmissibility of Medlin’s testimony is plain on the face of the record

and no reasonable counsel could have decided that the defense would be better

served by its admission than its exclusion. That is, we cannot imagine any reasonable

trial strategy that would excuse or explain trial counsel’s failure to object to Medlin’s

testimony, which was categorically inadmissible and unfavorable to the defense.

Ineffective-assistance claims must be evaluated on a case-by-case basis. See

Okonkwo, 398 S.W.3d at 693 (stating that judicial evaluation of ineffective-

assistance claims turns on “all the circumstances” and observing that act or omission

by counsel that is unreasonable in one case may be reasonable in another one). Thus,

possession or promotion of child pornography, all apply to victims who are “younger

than 18 years of age.” PENAL §§ 20A.01(a), 43.25(a)(1), 43.26(a)(1). But none of these

offenses—online solicitation of a minor, sex trafficking, sexual performance by a child,

and possession or promotion of child pornography—are even arguably applicable here.

24

while we do not lay down a rule of universal application, we think it will be a rare

situation in which failing to object to evidence categorically inadmissible under

Article 38.37 of the Texas Code of Criminal Procedure is not deficient performance.

To explain why, we must briefly consider Article 38.37’s purpose and effect.

Ordinarily, our rules of evidence make separate offenses that a defendant

committed against others inadmissible during the guilt-innocence phase of a criminal

trial, at least for purposes of proving the defendant’s character to show he acted in

accord with his character on a particular occasion. See TEX. R. EVID. 404(a)(1),

(b)(1) (disallowing evidence of crimes, wrongs, and other acts for this purpose and

also disallowing evidence of character to prove that person acted in accord with his

character); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) (extraneous-

offense evidence inadmissible when it has no relevance apart from character

conformity); see also TEX. R. EVID. 405 (limiting manner in which person’s

character may be proved in limited circumstances in which such evidence is

allowed). Article 38.37 upends this result by making evidence of certain enumerated

separate offenses admissible in prosecutions of sex-related crimes committed against

children. See TEX. CODE CRIM. PROC. art. 38.37, § 2(b) (making this evidence

admissible notwithstanding Rules 404 and 405 of Texas Rules of Evidence).

Our court has previously recognized that Article 38.37 makes this evidence

admissible because prosecuting sex crimes committed against children is especially

25

difficult due to the trauma visited on young victims. Cox v. State, 495 S.W.3d 898,

904 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). This can lead to delays in the

reporting or discovery of these crimes, during which evidence disappears. Id. Often

the only significant evidence at trial may be the child’s uncorroborated testimony,

and children are often targeted for these crimes in part because they tend to be poor

witnesses. Id. Article 38.37 remedies these evidentiary obstacles by allowing

prosecutors to introduce evidence of similar sex-related offenses committed against

other children that would otherwise be inadmissible. See id.; see also Caston v. State,

549 S.W.3d 601, 610 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (noting that

Article 38.37 arms prosecutors with additional evidence due to tendency of child’s

credibility to become focal issue when prosecution turns on child’s uncorroborated

testimony or boils down to credibility battle between accused and child). This

evidence is admissible for any relevant purpose, including as proof of the

defendant’s character and propensity to act in conformity with his character. TEX.

CODE CRIM. PROC. art. 38.37, § 2(b); Castillo v. State, 573 S.W.3d 869, 880 (Tex.

App.—Houston [1st Dist.] 2019, pet. ref’d). In other words, the State can offer

evidence of these separate crimes to prove the defendant is guilty of the crime

charged. As we have previously observed, perhaps with a degree of understatement,

this kind of “testimony of another child victim is damning evidence.” Id. at 883.

26

In this particular case, the lone testimony the jury heard about Dryer’s sexual

abuse of I.D. came from I.D. herself. There was no other testimony or physical

evidence as to Dryer’s commission of the charged offense, continuous sexual abuse

of a young child. Without Medlin’s testimony about the sleepover incident, the jury

would have had to reach a verdict based on either I.D.’s uncorroborated testimony

or the jury’s evaluation of her credibility relative to Dryer, assuming he would have

chosen to testify in a trial that did not include Medlin’s additional allegations. Under

these circumstances, a defense lawyer could not reasonably forego an objection that

would bar the jury from hearing the damning testimony of a second accuser in

corroboration of the charged offense. There is no reasonable trial strategy that would

allow counsel to let a jury hear this highly prejudicial inadmissible evidence. See

Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006) (observing that

when defense principally rests on defendant’s credibility weight of authority

supports holding that his trial lawyer performs deficiently by allowing jury to hear

prejudicial and clearly inadmissible evidence, like prior convictions, during trial’s

guilt-innocence phase because doing so could serve no strategic purpose); Agbogwe

v. State, 414 S.W.3d 820, 833 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (same).

Thus, Dryer’s trial lawyer’s performance was deficient in this respect as a matter of

law. See Lopez, 343 S.W.3d at 143; see also Rodriguez v. State, No. 14-17-00388-

CR, 2018 WL 6493880, at *4 (Tex. App.—Houston [14th Dist.] Dec. 11, 2018, no

27

pet.) (mem. op., not designated for publication) (assuming, without deciding, that

defense counsel’s failure to object that TEX. CODE CRIM. PROC. art. 38.37, § 2 did

not apply to extraneous offense because victim against whom it was committed was

adult constitutes conduct so outrageous that no competent lawyer would have

engaged in this conduct).

The State argues that the record was less clear as to Medlin’s age than Dryer

suggests, noting that during the pretrial hearing on the admissibility of Medlin’s

testimony she said that she was about 16 years old at the time of the sleepover. Thus,

the State maintains that it would not have been immediately clear to Dryer’s lawyer,

or any reasonable defense lawyer, that she was in fact 17 years old at the time.

The flaw in the State’s argument is that the clerk’s record establishes that

Dryer’s trial lawyer reviewed or received a copy of Medlin’s October 2017

videorecorded interview in October 2018—more than three years before the

February 2022 pretrial hearing on the admissibility of her testimony. In the

interview, Medlin stated her date of birth—November 16, 1999—at the outset. Later

during the interview, which only lasted about eight-and-a-half minutes, both Medlin

and Detective Higgs acknowledged that she was not a child at the time of the August

2017 sleepover. Higgs at one point asked Medlin for her date of birth a second time,

which she again told him. Higgs responded, “So you are 17, you’ll be 18 in

November?” Medlin nodded her head affirmatively and answered, “Yes, sir.”

28

Medlin then said that she understood she was “technically an adult.” Though Higgs

opined that Dryer’s conduct could still be criminal, he too agreed that she was “not

a child,” given that she was 17 years old. Hence, Dryer’s counsel either was aware

or should have been aware before trial of Medlin’s age and recognized the

corresponding inadmissibility of her testimony.

The State further argues that Medlin’s testimony was admissible on a ground

independent from Article 38.37 of the Texas Code of Criminal Procedure.

Specifically, the State posits that Medlin’s testimony was admissible to rebut the

defense’s “claim that I.D. had fabricated her allegations.” See, e.g., Bass v. State,

270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (holding defensive theory of

fabrication raised in opening statement opened door to extraneous offenses). Thus,

the State reasons, Dryer’s lawyer was not deficient in failing to object to the

admissibility of Medlin’s testimony under Article 38.37 because it was admissible

on a different basis—to rebut the contention that I.D. lied about Dryer’s abuse.

But the State presented Medlin as its second witness during its case in chief,

before the defense had put on any evidence of its own and before the defense had

engaged in cross-examination of a prosecution witness that was sufficient to raise a

defense of fabrication. In addition, the defense had reserved its right to make an

opening statement. Thus, when Medlin testified, the defense had not yet suggested

before the jury that I.D. had fabricated her allegations of sexual abuse.

29

Under these circumstances, Medlin’s testimony about Dryer touching her

thigh during the sleepover was not admissible as rebuttal evidence because the State

cannot rebut a defensive theory of fabrication with evidence of extraneous offenses

before the defensive theory is actually raised by the defense. That is, Texas law does

not allow the State to introduce evidence of extraneous offenses in prebuttal of

anticipated but as yet unraised defensive theories like fabrication. See Smith v. State,

420 S.W.3d 207, 219–20 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (noting

that extraneous-offense evidence is admissible to rebut defensive theory raised in

opening statement or through cross-examination of prosecution witnesses but that

defense must have genuinely raised theory before rebuttal may occur); see also De

La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (agreeing mere denial

of guilt does not open door to admission of extraneous offenses, as otherwise simple

fact that defendant insisted on right to trial would make this evidence admissible).

In sum, we reject the State’s arguments that defense counsel’s failure to object

to the admissibility of Medlin’s testimony under Article 38.37 was not deficient.

Thus, we must next decide whether counsel’s deficiency prejudiced the defense.

Prejudice

A single error is not prejudicial for purposes of ineffective assistance unless

it was both egregious and had a seriously deleterious impact on counsel’s

representation as a whole. Frangias, 450 S.W.3d at 136. Here, defense counsel’s

30

error—failing to object that Medlin’s testimony that Dryer touched her thigh at the

sleepover was inadmissible under Article 38.37 because she was not a child—was

both egregious and had a seriously deleterious impact on counsel’s representation.

The inadmissibility of Medlin’s testimony is straightforward. Medlin’s

videorecorded interview established that she was 17 years old at the time of the

sleepover, and her age rendered her testimony inadmissible under Article 38.37.

The admission of this inadmissible testimony transformed the trial from a he

said, she said dispute turning almost entirely on the jury’s evaluation of I.D.’s and

Dryer’s credibility to a contest in which Dryer faced two separate accusers. Medlin’s

allegation that Dryer touched her inappropriately at the sleepover ultimately

occupied at least as much time at trial as I.D.’s allegations of sexual abuse. The

sleepover was discussed repeatedly and by multiple witnesses. During its case in

chief, the State called four witnesses: Black, Medlin, Higgs, and I.D. All four

testified about the sleepover or Medlin’s allegations. In addition, two of the State’s

four rebuttal witnesses testified about the sleepover. Thus, while defense counsel’s

error was singular, the error occurred at the outset, during a pretrial hearing about

the admissibility of the evidence at issue and impacted the trial from start to finish.

Had defense counsel objected, the trial would have fundamentally differed.

As we have noted, testimony about separate alleged sex-related offenses

admitted under Article 38.37 is damning evidence. Medlin’s testimony is no

31

exception. While her testimony differed somewhat from I.D.’s, both witnesses

testified to touching alone. Medlin testified that Dryer had touched her thigh and

moved toward her “private area,” which is where I.D. said he routinely touched her.

I.D. also testified to other episodes of touching—these involving her buttocks—that

occurred when she and Dryer were watching movies. Medlin likewise said Dryer

touched her while they were watching a movie. Hence, Medlin’s testimony

resembled I.D.’s testimony enough to corroborate I.D.’s allegations of sexual abuse

against Dryer. Medlin’s testimony was substantial additional evidence of guilt.

Indeed, the State argued for the admission of Medlin’s testimony in part on

this basis. The prosecutor asserted that Medlin’s testimony was “extremely

important and necessary for the State because the entire case rests on the testimony

of the complaining witness.” The prosecutor observed that there were “no other

eyewitnesses” or “forensic evidence” or “medical evidence.” Thus, the prosecutor

reasoned, “having a second witness who can testify that the Defendant did something

similar to her is incredibly corroborating.” Later, in closing argument, the State

pitched the same interpretation of the evidence to the jury, arguing that Medlin’s

testimony “tells you everything that you need to know about the Defendant.” The

prosecutor elaborated that this was so because:

[T]he defense raises that question. Who in the world would molest their

daughter when the wall right there that you’re looking at, on the other

side of that is your sleeping wife? Who in the world would be so bold

32

to do that? The same man that would sit on the couch and rub up on a

girl’s leg with two boys, including his son, in the same room.

Furthermore, Medlin was demonstrably emotional on the stand. The trial

transcript twice notes that she cried during her testimony. On the second occasion,

Medlin was so tearful that the trial court recessed proceedings after advising Medlin

to “take a couple of deep breaths and calm down” and asking if Medlin needed some

water. In closing, the State argued that Medlin’s emotion was a sign of veracity. The

prosecutor rhetorically asked the members of the jury: “Do you really think that I

brought in an Oscar-worthy actress to have a visceral, emotional reaction to the point

that we had to take breaks?” The prosecutor further advocated that Medlin’s

“emotions tells [sic] you everything that you need to know about what happened in

[I.D.’s] room at night.”

In sum, Medlin’s testimony played a critical role at trial, with the subject of

the sleepover and her allegations repeatedly resurfacing during the testimony of

multiple witnesses. The State argued in part that the jury should believe both Medlin

and I.D. based on the emotional character of Medlin’s testimony, which defense

counsel could have readily kept the jury from hearing by making a simple objection

before trial based on facts that either were known to counsel or should have been

known to him. Counsel’s failure to make this objection changed the course of the

entire trial to Dryer’s detriment without any conceivable strategic or tactical benefit

to the defense. This is precisely the sort of situation in which a single error by counsel

33

is both so egregious and has such a deleterious impact on the representation as a

whole that it supports a claim of ineffective assistance of counsel on direct appeal.

On this record, defense counsel’s error undermines our confidence in the

trial’s outcome. Evidence of extraneous offenses is inherently prejudicial and harms

a defendant, in part because it forces the defendant to defend himself against charges

that are not part of the present prosecution and also because it encourages the jury

to convict based on bad character instead of proof of the specific crime charged.

Sims v. State, 273 S.W.3d 291, 294–95 (Tex. Crim. App. 2008); Daggett v. State,

187 S.W.3d 444, 450–51 & n.12 (Tex. Crim. App. 2005). Here, the outcome of the

trial essentially depended on the jury’s evaluation of the credibility of Dryer and his

accuser, whose testimony was significantly corroborated by Medlin’s inadmissible

testimony about her own similar encounter with Dryer. Medlin’s testimony therefore

harmed the defense both by diminishing Dryer’s credibility and bolstering I.D.’s

testimony about the abuse. Furthermore, Medlin’s account of her encounter with

Dryer pervaded the trial from start to finish, such that defense counsel’s singular

error had a significant impact on the representation as a whole. Under these

circumstances, had the jury not heard from or about Medlin, there is a reasonable

probability that the outcome of the trial would have differed. See Ex parte Menchaca,

854 S.W.2d 128, 132–33 (Tex. Crim. App. 1993) (holding that lawyer’s failure to

prevent admission of inadmissible prior conviction for rape in drug prosecution was

34

both deficient and prejudicial in significant part because it permeated entire guilt-

innocence phase of trial, outcome rested entirely on credibility of witnesses, and

prior conviction undermined defendant’s credibility and thus heart of his defense);

see also Garcia v. State, 308 S.W.3d 62, 66–69, 75–76 (Tex. App.—San Antonio

2009, no pet.) (holding that lawyer’s opening of door to rebuttal evidence of

defendant’s sexual assault of second victim in prosecution for sexual assault was,

among other failings, deficient and prejudicial given that sole viable defense

depended on defendant’s credibility); Stone v. State, 17 S.W.3d 348, 352–54 (Tex.

App.—Corpus Christi 2000, pet. ref’d) (holding lawyer’s introduction of otherwise

inadmissible murder conviction during trial’s guilt-innocence phase in drug

prosecution was both deficient and prejudicial because it diminished defendant’s

credibility, which was critical to his defense, and corroborated prosecution evidence

about his behavior); Ramirez v. State, 873 S.W.2d 757, 762–63 (Tex. App.—El Paso

1994, pet. ref’d) (holding lawyer’s failure to prevent admission of evidence of

remote murder conviction during trial’s guilt-innocence phase was deficient and

prejudicial in that defendant claimed self-defense and his prior conviction both

harmed his credibility and was used by prosecutor to argue that he had propensity to

commit murder).

35

CONCLUSION

We reverse the trial court’s judgment and remand for a new trial. See Ex parte

Stamnitz, 768 S.W.2d 461, 462 (Tex. App.—Houston [1st Dist.] 1989, no pet.)

(holding correct remedy when reversing judgment of conviction due to ineffective

assistance of trial counsel is to remand cause for new trial); see also Lopez v. State,

462 S.W.3d 180, 190 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (remanding for

new punishment hearing due to ineffective assistance during sentencing stage).

Gordon Goodman

Justice

Panel consists of Justices Goodman, Hightower, and Guerra.

Publish. TEX. R. APP. P. 47.2(b).

36