deciding ineffective assistance claim and finding that because pediatric nurse’s suspicions of abuse were based on her education, training, and experience and because the qualification of experts is a discretionary matter for the trial judge to decide, appellant did not show that an objection on that basis to the nurse’s testimony would have been sustained
How later courts described this case
- deciding ineffective assistance claim and finding that because pediatric nurse’s suspicions of abuse were based on her education, training, and experience and because the qualification of experts is a discretionary matter for the trial judge to decide, appellant did not show that an objection on that basis to the nurse’s testimony would have been sustained
- holding appellant failed to carry burden by showing objection would have been sustained
Written by the judges who cited it.
The opinion
ORDER ON MOTION FOR REHEARING
WILSON, Justice.
Appellant filed a motion to supplement the record on appeal and a motion for rehearing. With Justice Cohen dissenting, the panel grants the motion to supplement the record on appeal. With Justice O’Connor dissenting, the panel overrules the motion for rehearing. However, we proceed to address an issue raised by the new material that has been added to the record.
On original submission, appellant contended counsel was ineffective because he did not introduce into evidence at trial three videotaped pretrial interviews with L.D. to show she was improperly coached during the interviews. This court held no deficiency was shown because the videotapes were not part of the record. We now grant appel *579 lant’s motion to supplement the record with the tapes and consider whether counsel was ineffective for not introducing them into evidence at trial.
This Court has reviewed the tapes. The tapes were made by CPS in July 1993 shortly after CPS initiated the investigation against appellant. All three tapes contain interviews between Schuler and L.D. Schuler was the CPS investigator assigned to the investigation of whether appellant molested L.D.
The first tape, recorded July 6, 1993, contains video but no audio. The video camera was not operating properly when this tape was made. Although we cannot tell what was said on this tape, the record shows that L.D. denied on the tape that appellant had molested her. The second tape, recorded July 16,1993, contains audio, but the video is distorted. The third tape, recorded July 19, 1993, contains both audio and video.
The interviews on the second and third tapes were conducted similarly. Schuler interviewed L.D. in an informal manner. At times, he asked L.D. open-ended questions, but other times he prefaced his questions by explaining to L.D. what he knew about the ease from his investigation. Viewed as a whole, we do not find the second and third tapes strongly suggestive. L.D. answered Schuler’s questions calmly and confidently, and a jury would likely find her to be a credible witness. L.D. explained on the second and third tapes that she lied on the first tape because she was scared CPS would take her away from her mother if she told the truth. When she learned that this would not happen, L.D. decided to tell the truth.
Schuler testified for the State at appellant’s trial. On cross-examination, counsel for appellant got Schuler to admit that L.D. denied being molested by appellant during the first taped interview.
L.D. also testified for the State at appellant’s trial. On both direct and cross-examination, L.D. testified that she denied during the first taped interview with Schuler that appellant had molested her. L.D. said she did this because she was scared and did not know what would happen. On cross-examination, counsel for appellant got L.D. to admit that she had changed her story several times, ie.:
1. On July 5, 1993, when talking with Schuler at her house, L.D. said appellant had molested her;
2. On July 6, 1993, during the first taped interview, L.D. denied appellant had molested her; and
3. On July 16 and 19, 1993, during the second and third taped interviews, L.D. again said appellant had molested her.
After viewing the tapes, we conclude appellant has not overcome the strong presumption that trial counsel’s decision to not introduce the tapes into evidence might be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App.1994). The questions in Schuler’s interviews were not strongly suggestive, and L.D. appeared to be a credible witness. Although L.D. denied appellant molested her during the first taped interview, counsel could not establish this by playing the tape because there was no sound. Counsel adequately established this fact through cross-examination of Schuler and L.D. Had counsel introduced the tapes into evidence as appellant suggests, we are not convinced there is a reasonable probability the outcome of appellant’s trial would have been different. Jackson, 877 S.W.2d at 771 .
We overrule appellant’s motion for rehearing.