Opinion by Justice CARTER.
Jerry Johnson was convicted by a jury of aggravated sexual assault of a child
Johnson, the step-grandfather of Tatiana Crawford,
Approximately five months after the assault, Tatiana made an outcry to her mother. Approximately one year after the assault, Tatiana started counseling sessions with Megan Shumake, a therapist at the Texarkana Children's Advocacy Center, through which she was diagnosed with post-traumatic stress disorder (PTSD) due to the sexual assault. At trial, the State called Shumake to testify as an expert in the field of PTSD in children. Shumake testified that Tatiana suffered from PTSD caused by sexual assault and opined that children rarely fabricate stories of abuse.
Two of Johnson's three ineffective assistance claims are rooted in counsel's failure to object to Shumake's testimony.
The Sixth Amendment to the United States Constitution grants an accused the right to have the assistance of counsel for his or her defense, a right that has been interpreted to require the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The right to effective assistance of counsel does not mean, however, that counsel must be errorless or perfect. Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). A conviction resulting from ineffective assistance of counsel is constitutionally infirm. Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
Ineffective assistance of counsel claims are evaluated under the two-part test formulated in Strickland, requiring a showing of both deficient performance and prejudice. Id. at 687, 104 S.Ct. 2052; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Fox v. State, 175 S.W.3d 475, 485 (Tex.App.-Texarkana 2005, pet. ref'd). Ineffective assistance of counsel claims must be firmly rooted in the record, with the record itself affirmatively demonstrating the alleged ineffectiveness. Lopez v. State, 343 S.W.3d 137, 142-43 (Tex.Crim.App.2011). Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n. 14 (Tex.Crim.App.2006). Thus, we need not examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
To prevail on his ineffective assistance claims, Johnson must prove by a preponderance of the evidence that (1) his counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000) (en banc). We indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance and that it was motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App.2002). Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing an evaluation of the merits of ineffective assistance claims. Thompson, 9 S.W.3d at 813. "In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect" the reasoning of trial counsel. Id. at 813-14. Only in the rare case "in which trial counsel's ineffectiveness is apparent from the record" may the appellate court "address and dispose of the claim on direct appeal." Lopez, 343 S.W.3d at 143.
Johnson claims that his trial counsel was ineffective because he failed to challenge and exclude testimony that Tatiana's PTSD resulted from sexual abuse, he procured testimony that children rarely fabricate allegations of sexual abuse, and he elicited extraneous-offense evidence during the guilt/innocence phase of the trial.
Johnson complains that his counsel was ineffective in failing to challenge and exclude Shumake's testimony that Tatiana suffered from PTSD caused by sexual abuse.
In support of his contention, Johnson relies on Lane v. State, 257 S.W.3d 22 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). In Lane, a social worker who counseled the complainant testified that the complainant had PTSD caused by childhood sexual abuse. Lane's trial counsel did not object to this testimony. Id. at 25. On appeal, Lane complained that the subject testimony was inadmissible opinion testimony on the complainant's truthfulness and that the failure to object on this basis was ineffective assistance of counsel. Id. at 27. The court determined that, because "[the social worker's] testimony she counseled complainant for fourteen weeks and determined [complainant] had been sexually assaulted was direct testimony that the complainant was truthful," the testimony was inadmissible. Id. To the extent Lane can be read to stand for the proposition that expert testimony regarding sexual abuse as the cause of PTSD is always inadmissible opinion testimony on the complainant's truthfulness, we must respectfully disagree.
Here, Shumake explained that PTSD results from experiencing a traumatic event that has caused major stress. Symptoms of the disorder include hyper-vigilance, arousal, intrusive thoughts, and trouble sleeping. Shumake testified that, by the time of trial, she had counseled Tatiana three times. On Tatiana's first visit, Shumake administered a computerized test designed to determine if Tatiana was experiencing PTSD.
In the context of explaining her diagnosis of PTSD, Shumake testified that she believed the disorder was caused by sexual abuse; while this testimony was corroborating evidence that sexual assault had occurred, it has no bearing on the truthfulness of Tatiana's statement that a particular person assaulted her and is, therefore, admissible. This type of evidence is no different than the results of a physical examination of a sexual abuse victim that corroborates that abuse has occurred. It does not point the finger at any particular person. Instead, this type of evidence merely verifies that the child was sexually assaulted. See Cohn v. State, 849 S.W.2d 817, 818-19 (Tex.Crim. App.1993) (although expert may not testify
Johnson next complains that, because his trial counsel elicited Shumake's testimony that false accusations of childhood sexual assault are very rare, counsel was ineffective. An expert is not permitted to give an opinion that the complainant or class of persons to which the complainant belongs (such as child sexual assault victims) is truthful. Yount v. State, 872 S.W.2d 706, 712 (Tex.Crim.App.1993); Fuller, 224 S.W.3d at 832. Instead of experts, jurors must draw "conclusions concerning the credibility of the parties in issue." Yount, 872 S.W.2d at 710; see Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.App.2010) ("[T]he jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.").
On cross-examination, defense counsel asked Shumake:
Johnson relies on Fuller, 224 S.W.3d at 826, and Sessums v. State, 129 S.W.3d 242, 248 (Tex.App.-Texarkana 2004, pet. ref'd), in support of his contention that the failure to object to Shumake's answer as quoted above is ineffective assistance of counsel. In Fuller, the State elicited opinions concerning the complainant's truthfulness from four different witnesses, with no objections. Fuller, 224 S.W.3d at 833-35. Instead of objecting, on cross-examination, counsel employed a strategy of exploring each witness' belief in the credibility of the complainant. This tactic resulted in only more bolstering. Id. at 835. In Sessums, the State elicited testimony from four different expert witnesses concerning the complainant's truthfulness, without objection. Sessums, 129 S.W.3d at 247. The State emphasized this testimony in closing arguments. Id. at 248. We compared this conduct to that discussed in Miller v. State, 757 S.W.2d 880, 884 (Tex.App.-Dallas 1988, pet. ref'd), where the court concluded that failing to object to the "`extensive, inadmissible testimony concerning the only real issue at trial — complainant's credibility'[ — ]was deficient." Sessums, 129 S.W.3d at 248 (quoting Miller, 757 S.W.2d at 884).
In this case, defense counsel asked a question to which an objectionable response was given. The testimony here was spontaneous on the part of the witness and was not emphasized by the State. Thus, this case is distinguished from Fuller and Sessums, where extensive testimony was elicited by the State from four different witnesses in each case. Here, the testimony was attributable to a single witness and was spontaneous and brief.
In the face of a silent record, we must presume counsel had a plausible reason for his actions. Tong, 25 S.W.3d at 713-14. Counsel could have reasonably concluded that an objection would have served only to emphasize the testimony. See Alberts v. State, 302 S.W.3d 495, 506 n. 7 (Tex. App.-Texarkana 2009, no pet.). In order to preserve this point of error for appeal, counsel would have to object and receive a favorable ruling. The rules of preservation
The defense called Don Hutcheson during its case-in-chief, who testified (1) that he had known Johnson since 2008, (2) that he had personally observed Johnson around children, including his own grandchildren, (3) that Johnson had never done anything inappropriate, and (4) that he would allow Johnson in the presence of his grandchildren. On cross-examination, however, the following exchange took place:
As a result of this testimony, the trial court ruled that the defense opened the door for the introduction of Johnson's criminal history. On appeal, Johnson does not contest the propriety of this ruling. Instead, he contends counsel was ineffective for opening the door to extraneous-offense evidence that damaged his credibility with the jury.
Unlike Robertson and Garcia, there is nothing in the record here to suggest that defense counsel purposely elicited extraneous-offense evidence from his client or otherwise intentionally opened the door to such evidence. Before Hutcheson took the stand, defense counsel advised the trial court that Hutcheson was being called for the limited purpose of offering testimony of Johnson's good character for moral and safe relations with small children or young girls. In accordance with this representation, counsel limited his examination of Hutcheson to this subject. When the State cross-examined Hutcheson, Hutcheson testified that he was aware of Johnson's "moral caliber." At that point, the State argued that the defense had opened the door to rebuttal testimony of Johnson's character which entitled the State to offer evidence of Johnson's prior convictions. Defense counsel argued that their evidence was limited to the particular character trait of moral and safe relations with small children, that it did not delve into truth or veracity. Defense counsel further argued that proof of prior theft convictions did not rebut a character trait for moral and safe relations with children and should not be admitted. The trial court announced that
We believe defense counsel's decision to call Hutcheson as a limited character witness represented a strategy within the bounds of the objective standard of reasonableness. Rule 404 generally excludes character trait evidence, but allows the defendant to offer evidence of a "pertinent character trait." Likewise, the State may rebut the same. TEX.R. EVID. 404(a)(1)(A). Here, the defense attempted to limit its offer to one pertinent character trait (moral and safe relations with children). Had that been the only evidence offered, there is authority to support counsel's argument to the trial court that Rule 404 only allowed the State to rebut with evidence of that particular character trait. See Duren v. State, 87 S.W.3d 719, 730 (Tex.App.-Texarkana 2002, pet. denied) ("Rule 404(a)(1) only allows the prosecution to rebut the pertinent character trait to which the defense witness's testimony referred.").
The complicating factor is that Hutcheson, in a nonresponsive answer, stated that he knew Johnson's "moral caliber" around children. He was then further asked if he knew Johnson's moral caliber and he answered, "Yes."
We do not answer this question by reviewing whether counsel's trial strategy was successful. At the time the evidence was offered, a reasonable argument was available that the State could only rebut the character trait evidence offered by the defendant. On direct examination, defense counsel only inquired into Hutcheson's knowledge of Johnson's character trait for moral and safe relations with children. When Hutcheson volunteered information that indicated Johnson was of good moral character, the argument that the State was limited to rebutting only a particular character trait dissolved. Even after this occurred, counsel took steps to limit any damage incurred from the State's questioning. Defense counsel requested and received a limiting instruction whereby the jury was informed (1) that the extraneous-offense evidence could not be considered for any purpose unless the jury believed, beyond a reasonable doubt, that Johnson committed such other offenses, if any were committed, and (2) that even then such offenses could only be considered to rebut Hutcheson's testimony.
We find that counsel acted within the realm of reasonable trial strategy in attempting to present limited character trait evidence, and we will not second guess this decision through the lens of hindsight. We find no deficient performance by defense counsel.
During direct examination by the State, Officer Matt Cashatt of the Texarkana Police Department testified that the penalty for a first degree felony is five to ninety-nine years' or life imprisonment and that the penalty for a second degree felony
The State contends that any complaint regarding prosecutorial misconduct has not been preserved for our review. To preserve a prosecutorial misconduct complaint, a defendant must generally make a timely and specific objection, request an instruction to disregard the matter improperly placed before the jury, and move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex.Crim.App.1995) (per curiam); see TEX.R.APP. P. 33.1(a). At trial, Johnson objected on the basis of relevance when the subject was initially broached during Cashatt's testimony. The trial court overruled the objection and gave Johnson a running objection. Johnson now complains that the State improperly elicited the subject testimony and argued punishment during closing argument. However, Johnson failed to object on the basis of prosecutorial misconduct.
While tacitly acknowledging the failure to object to prosecutorial misconduct, Johnson maintains, in reliance on Rogers v. State, 725 S.W.2d 350 (Tex.App.-Houston [1st Dist.] 1987, no pet.), that preservation was not required. Rogers involved flagrant and repeated misconduct by the prosecutor who repeatedly made side-bar remarks and suggested inflammatory facts which lacked evidentiary support while cross-examining the defendant and his character witnesses. Id. at 358-61. The court concluded that the prosecutor acted in bad faith and that her behavior "could serve no purpose other than to inflame and prejudice the minds of the jurors." Id. at 360. Based on these facts, Rogers was able to raise prosecutorial misconduct as a point of error on appeal, even though he failed to preserve the point of error:
Id. at 359-60.
Johnson claims this case likewise involves pervasive prosecutorial misconduct because the State engaged in "improper gamesmanship by intentionally misleading the jury as to the appropriate range of punishment applicable to Appellant's case in the event of conviction on either indictment." To place this assertion in perspective, it is important to understand the background relative to the reported time of the assaults. It was initially reported by each of the complainants that the assaults took place in May 2012. At trial, however, both complainants agreed the assaults took place in July 2012. Because the older sister turned fourteen in June 2012, the charge as indicted was for sexual assault of a minor (as opposed to aggravated sexual assault of a minor). Before Cashatt was able to explain to the jury how Johnson would benefit from this change, defense counsel objected to the relevance of this inquiry.
In discussing this objection in a hearing outside the presence of the jury, the State argued that testimony to the effect that Johnson would receive a benefit from the change in offense dates was necessary to rebut the defensive theory of fabrication. The State further argued that, if indeed the stories were bogus, there would be no reason for the complainants to indicate the
The trial court determined that the punishment ranges of the charged offenses were "relevant to explain — to give the jury consideration as to why the State may have alleged July as opposed to May."
We cannot say, especially in light of the trial court's decision to admit punishment range evidence, that this conduct was the sort of flagrant repeated misconduct at issue in Rogers such that it deprived Johnson of fundamental fairness or due process of law. That being the case, Johnson was required to preserve any perceived error regarding prosecutorial misconduct by making a timely and specific objection on that basis. See Penry, 903 S.W.2d at 764; see also TEX.R.APP. P. 33.1(a). Because he failed to do so, this point of error has not been preserved.
We affirm the judgment of the trial court.
