Pablo Lopez v. The State of Texas Child Sexual Predator

Houston, TX – Criminal Defense lawyer represented defendant with contending that he was denied effective assistance of counsel at trial, after he was convicted of the first-degree felony offense of

aggravated sexual assault of a child.

The complainant, B.R., who was 16 years old at the time of trial, testified that

appellant, who was her step-father, began sexually abusing her when she was five

years old. B.R. testified that the abusive events continued until she reached the age

of twelve, when her mother, Marlena Solisa Espana, divorced appellant. Appellant

was charged with and convicted of a single act that occurred on or about July 1, 2001,

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when B.R. was nine.

Concerning the incident at issue, B.R. testified that when her mother was away

from home out shopping, appellant instructed B.R. to go into his room and disrobe.

B.R. testified that appellant got on top of her and attempted to insert his "thing” into

her "private part,” referring to male and female sexual organs, respectively. B.R.

testified that it hurt very badly and that she begged him to stop. When he continued,

B.R. began kicking and scratching, and was able to extricate herself from underneath

appellant. B.R. ran from appellant, but he chased her around the house. B.R. fell,

and appellant caught her and began beating her. The struggle ended when B.R.'s

mother came home. B.R. did not report the incident to anyone at that time.

In 2006, when B.R. was a sophomore in high school, she told a close friend

about her history with appellant. The friend reported the information to the friend's

aunt, who called B.R.'s school counselor, Toni Sika.

According to Sika, the aunt said that "[B.R.] had told her some things that were

upsetting and that some things had happened to [B.R.] that were inappropriate.” The

aunt did not offer any details. Sika called B.R. into her office. Sika testified that B.R.

was very emotional and told her that appellant had touched and fondled her, "had

pulled her panties down,” and that he promised to be kind to her in exchange for

"things.” Sika said that B.R. told her that the incidents began when B.R. was "around

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four years old.” Sika reported the information to CPS.

Claudia Mullin of the Harris County Children's Assessment Center conducted

a videotaped interview of B.R. Mullin explained that her purpose during the

interview process is to assess the credibility of the child, and she explained certain

credibility factors. Mullin explained that, where there are multiple allegations of

sexual abuse, she seeks to establish the first and last acts. Mullin testified that she

used this method while interviewing B.R. and that B.R.'s "disclosure seemed

credible.”

According to Mullin's testimony, the first incident B.R. could remember

occurred while B.R. was "either four or five.” B.R. remembered having gone into the

kitchen and asked appellant for something to eat. B.R. reported that appellant

responded, "You have to give me something first.” B.R. said that appellant "stood

her on a chair, pulled down her panties, pulled out his thing, . . . and started to touch

her down there in front.”

Concerning the incident at issue, B.R. reported to Mullin that appellant pulled

B.R. by the hair into his bedroom and insisted that they "were going to do it.” B.R.

told Mullin that appellant pushed her onto her mother's bed, that he took off her

pants, and that he "didn't put it all the way in, just halfway.”

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Maria Benavides, B.R.'s mentor as part of a school program, testified that she

learned of B.R.'s allegations against appellant through Sika. Benavides called B.R.

and met with her. Benavides testified that B.R. was emotional as she recounted a

series of abusive events that had begun when B.R. was four or five years old. On the

first occasion in B.R.'s memory, appellant was in the kitchen cooking while her

mother was at the laundromat. B.R. asked him if she could have something to eat

and he said, "Fine. What are you going to give me?” Appellant picked up B.R.,

placed her on a chair or table, removed her panties, and "rubbed his penis on her

vagina.” Benavides testified that B.R. said that this conduct happened "a lot” and that

she frequently had to "fight him off.”

Concerning the incident at issue, Benavides testified that B.R. said that, while

her mother was away at the store, appellant had gotten on top of her. B.R. pushed

him off, but he beat her very badly. Appellant told B.R.'s mother that he had

disciplined B.R. for failing to do her chores.

Officer M. Parrie, of the Juvenile Sex Crimes Division of the Houston Police

Department, testified that he viewed B.R.'s videotaped interview but, as is customary,

he did not speak directly with B.R. Officer Parrie testified that B.R. stated during her

interview that Sika wasthe first person she had told about the incident. Officer Parrie

interviewed appellant and, based in part on the interview, arrested appellant.

Appellant is fluent only in the Spanish language and testified through an interpreter. 3

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Appellant testified at trial that he works six days per week from 6:00 a.m. to 3

6:00 p.m.; that B.R.'s mother does not drive and does not have a car; that he was

"never” left alone with B.R., or his other two daughters; and that B.R. had fabricated

the allegations.

The jury found appellant guilty of aggravated sexual assault of a child and

assessed punishment at 50 years' confinement. Appellant moved for the withdrawal

of his trial counsel, Robert Valles, whose representation is the subject of this appeal,

and for the appointment of appellate counsel, J.C. Castillo. Appellant's motion was

granted. The trial court denied appellant's motion for new trial. This appeal

followed.

Ineffective Assistance of Counsel

In his sole issue, appellant contends that he was denied his right to effective

assistance of counsel at trial because counsel (1) "failed to raise the provisions of

Section 38.072 of the Code of Criminal Procedure and limit the amount of hearsay

that could be admitted” and (2) failed to object to inadmissible opinion testimony.

A. Standard of Review

Appellant is entitled to reasonably effective assistance of counsel. See U.S.

CONST. amend. VI; TEX. CONST. art. I, § 10. The right to counsel, however, does not

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mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex.

Crim. App. 2006). To prove ineffective assistance of counsel, appellant must show

that (1) counsel's performance fell below an objective standard of reasonableness and

(2) that there is a reasonable probability that the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,

2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

A "reasonable probability” is a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694, 104 S. Ct. 2068.

To prevail, appellant must prove ineffective assistance by a preponderance of

the evidence and must overcome the strong presumption that counsel's conduct falls

within the wide range of reasonably professional assistance or might reasonably be

considered sound trial strategy. See Robertson, 187 S.W.3d at 482–83; Gamble v.

State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). A failure

to make a showing under either prong defeats a claim of ineffective assistance of

counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (emphasis

added).

As the reviewing court, we look to the totality of the representation and to the

circumstances of the case, not to isolated errors. Robertson, 187 S.W.3d at 483–84.

We must consider the adequacy of assistance as viewed at the time of trial, not

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through hindsight. Id. at 482–83.

Additionally, we cannot speculate as to the reasons supporting counsel's

behavior. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Allegations of

ineffectiveness must be firmly founded in the record. Id. at 833 & n.13. Ordinarily,

the record on direct appeal is undeveloped and cannot adequately reflect the motives

behind trial counsel's actions. Rylander, 101 S.W.3d at 110–11. In the absence of

evidence of counsel's reasons for the challenged conduct, an appellate court should

not find deficient performance unless the conduct was so outrageous that no

competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005).

In the rare cases in which the record on direct appeal is sufficient to show that

counsel's performance was deficient, an appellate court should address the claim.

Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). An appellant may

prevail on an ineffective assistance claim by providing a record that affirmatively

demonstrates that counsel's performance was not based on sound trial strategy.

Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). If "no reasonable trial

strategy could justify the trial counsel's conduct, counsel's performance falls below

an objective standard of reasonableness as a matter of law, regardless of whether the

record adequately reflects the trial counsel's subjective reasons for acting as [he]

Hearsay is " a statement, other than one made by the declarant while testifying at trial 4

or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R.

EVID. 801(d).

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did.” Andrews, 159 S.W.3d at 102. A single egregious error of omission or

commission by counsel has been held to constitute ineffective assistance, even in the

absence of a record setting forth counsel's reasons for the challenged conduct.

Vasquez v. State, 830 S.W.2d 948, 950–51 (Tex. Crim. App. 1992); McKinny v. State,

76 S.W.3d 463, 470–71 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

B. Counsel's Performance

1. Article 38.072 and Hearsay

Appellant first contends that his trial counsel was ineffective because he "failed

to raise the provisions of Section 38.072 of the Code of Criminal Procedure and limit

the amount of hearsay that could be admitted.”

Generally, hearsay statements are inadmissible except as provided by statute

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or other rule. TEX.R.EVID.802;see TEX.R.EVID. 803 (providing exceptions). Texas

Code of Criminal Procedure article 38.072 provides a statutory exception that allows

the State to introduce outcry statements made by a child victim of certain offenses,

which would otherwise be considered inadmissible hearsay. See Act of May 27, 1985,

69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2222–23, amended by Act

of May 27, 2009, 81st Leg., R.S., ch. 710, § 1–2, 2009 Tex. Gen. Laws 1780,

The applicable 2009 amendment applies only to a criminal proceeding commenced

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on or after its effective date, which is September 1, 2009. See Act of May 28, 2009,

81st Leg., R.S., ch. 710, § 3, 2009 Tex. Gen. Laws 1780, 1781. Here, the proceeding

was commenced on or about January 11, 2008. Accordingly, the former version of

article 38.072, section 1, applies to this case.

The victim's age when the offense is committed triggers whether the statute applies, 6

not the victim's age at the time the outcry statement is made. See Harvey v. State, 123

S.W.3d 623, 627–29 (Tex. App.—Texarkana 2003, pet. ref'd) (holding that, for

article 38.072 to apply, not only must offense have been committed against child age

12 or younger, but victim, while still "a child”—that is, not having reached his or her

18th birthday—must have confided details of ordeal to person age 18 years or older).

Here, B.R. was age nine at the time of the offense and was under age eighteen at the

time of her disclosure..

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1780–81 (current version at TEX.CODE CRIM.PROC.ANN. art. 38.072 § 1–2 (Vernon

Supp. 2009)) ; See Martinez v. State, 178 S.W.3d 806, 810–11, n.14 (Tex. Crim. App. 5

2005). Article 38.072 applies to, inter alia, the prosecution of assaultive offenses

under Penal Code section 22.021 committed against children twelve years of age and

younger, as here. See Act of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex.

Gen. Laws 2222, 2222–23 (amended 2009). Article 38.072 allows statements of the 6

child victim describing the alleged offense to be admitted through an "outcry

witness,” that is, the first adult "to whom the child makes a statement that in some

discernible manner describes the alleged offense.” See Act of May 27, 1985, 69th

Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2222–23 (amended 2009)

(current version at TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(a) (Vernon Supp.

2009)); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (explaining that

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statement must be "more than words which give a general allusion that something in

the area of child abuse was going on”). However, testimony from more than one

outcry witness may be admissible under article 38.072 if the witnesses describe

different events and do not merely repeat the same event as related to them by the

victim. Broderick v. State, 35 S.W.3d 67, 73–74 (Tex. App.—Texarkana 2000, pet.

ref'd).

Invoking the statutory exception, however, requires notice and a hearing. Long

v. State, 800 S.W.2d 545, 546 (Tex. Crim. App. 1990). Pursuant to article 38.072, a

statement is not inadmissible as hearsay if (1) the party intending to offer the

statement timely notifies the adverse party of its intention to do so, and provides the

name of the witness and a summary of the statement; (2) the trial court finds, in a

hearing conducted outside the presence of the jury, that the statement is reliable based

on the time, content, and circumstances of the statement; and (3) the child testifies or

is available to testify at the proceeding. See TEX. CODE CRIM. PROC. ANN. art.

38.072, § 2(b) (Vernon 2009).

Here, the record shows that the State gave a "Notice of Intention to Use Child

Abuse Victim's Hearsay Statement.” The Notice states that the State intended to

offer B.R.'s statements though Maria Benavides and Claudia Mullin, and includes a

summary of their statements. At trial, the State presented the testimony of Benavides

The State did not name Sika in its notice of intention to use a child abuse victim's 7

hearsay statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1) (Vernon

2009). Appellant did not, however, complain about this at trial, nor does he complain

about it on appeal.

Generally, the party seeking admissibility of the evidence bears the burden of 8

invoking the exception.

Article 38.072 "applies only to statements that describe the alleged offense.” See Act 9

of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2222–23,

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and Mullin, as well asthat of Sika, the school counselor, without a defense objection.7

The testimony of Benavides, Mullin, and Sika constituted inadmissible hearsay.

First, the record before us does not indicate that an article 38.072 hearing was

requested or conducted. Appellant contends that "[n]o hearing was ever requested

by trial counsel,” and that "[t]he judge did not make a determination . . . as required

by Texas Code of Criminal Procedure, Article 38.072”; the State responds that no

hearing was conducted. The requirements of article 38.072 are mandatory. Long,

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800 S.W.2d at 547; Duncan v. State, 95 S.W.3d 669, 671 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref'd). When no hearing is conducted, the statutory requirements

have not been met, the exception is not invoked, and the testimony constitutes

inadmissible hearsay. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2);

Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992).

Second, each of the witnesses testified concerning B.R.'s statements regarding

the same event—the alleged offense. Sika, the school counselor, testified that B.R.

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amended by Act of May 27, 2009, 81st Leg., R.S., ch. 710, § 2, 2009 Tex. Gen. Laws

1780, 1780–81 (current version at TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(a)

(Vernon Supp. 2009)).

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told her that appellant had touched and fondled her, "had pulled her panties down,”

and that he promised to be kind to her in exchange for "things.” Mullin, of CAC,

testified that B.R. reported to her that appellant had pulled her by the hair into his

bedroom and had insisted that they "were going to do it.” B.R. told Mullin that

appellant pushed her onto her mother's bed, that he took off her pants, and that he

"didn't put it all the way in, just halfway.” Benavides testified that B.R. told her that,

while her mother was away at the store, appellant had gotten on top of her. B.R. had

pushed him off, but appellant beat her very badly. Testimony from more than one

outcry witness is not admissible under article 38.072 when, as here, the witnesses

merely repeat the same event as related to them by the victim. Broderick, 35 S.W.3d

at 73.

Moreover, the testimonies of Sika, Mullin, and Benavides constituted improper

bolstering of B.R.'s testimony. See Farris v. State, 643 S.W.2d 694, 697 (Tex.

Crim. App. 1982). Bolstering generally refers to evidence that improperly supports

the testimony of an unimpeached witness or adds credence or weight to prior

evidence introduced by the same party. State v. Balderas, 915 S.W.2d 913, 919 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref'd); see Rivas v. State, 275 S.W.3d 880, 886

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& n.3 (Tex. Crim. App. 2009) (explaining that "[w]hile the term 'bolstering' is slowly

dying as an objection on its face, it has not yet expired, despite the fact that the term

itself failed to survive the adoption of the Rules” and indicating that "bolstering” has

ties to Texas Rule of Evidence 613(c), which involves prior consistent statements and

reiterates principles of hearsay). Bolstering occurs when the testimony's sole purpose

is to enhance the credibility of a witness or source of evidence, without substantively

contributing "to make the existence of [a] fact that is of consequence to the

determination of the action more or less probable than it would be without the

evidence.” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993). Here,

although counsel cross-examined B.R. at trial, counsel focused his questions on

B.R.'s relationship with her mother. Each witness's rendition of the facts, as told to

them by B.R., served to add credence or weight to B.R.'s testimony and did not

substantively contribute toward making "the existence of [a] fact that is of

consequence to the determination of the action more or less probable than it would

be without the evidence.” See id.

Because the only issue at trial was B.R.'s credibility, trial counsel's failure to

object to such extensive improper testimony can only be characterized as falling

below an objective standard of reasonableness. See Andrews, 159 S.W.3d at 101;

Vasquez, 830 S.W.2d at 950–51; McKinny, 76 S.W.3d at 470–71.

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We recognize that the record is silent regarding trial counsel's reasons for

allowing the State to present the hearsay testimony of multiple witnesses concerning

the alleged offense, without an article 38.072 hearing. These contentions lie outside

the scope of the issues appellant raised in his motion for new trial. Notwithstanding,

we conclude that this is one of those cases in which the record clearly reflects that

counsel's performance fell below an objective standard of reasonableness.” See

Andrews, 159 S.W.3d at 102 (concluding that if "no reasonable trial strategy could

justify the trial counsel's conduct, counsel's performance falls below an objective

standard of reasonableness as a matter of law, regardless of whether the record

adequately reflects the trial counsel's subjective reasons for acting as [he] did”).

We also recognize that this court has previously concluded that a failure to

object to outcry testimony by multiple witnesses can constitute plausible strategy.

Vega v. State, No. 01-05-00358, 2006 WL 407821, at *3 (Tex. App.—Houston [1st

Dist.] Feb. 23, 2006, pet. ref'd) (mem. op., not designated for publication). We did

so, however, under circumstances not present in this case.

In Vega, three outcry witnesses were permitted to testify at trial, without

objection by defense counsel. Id. at *1. On appeal, appellant contended that his

counsel was ineffective for having failed to object. Id. We concluded that the record

demonstrated that there were "two reasons that counsel may have chosen not to object

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to the testimony.” Id. at *3. First, "counsel may have concluded that his attack on

[the child complainant's] credibility through cross-examination allowed the State to

introduce the [outcry witness testimony] to show a prior consistent statement.” Id.

Second, counsel had "relied heavily” on the child complainant having initially told

the three witnesses that someone other than appellant had committed the sexual

assault at issue. Id. We concluded, "Under these circumstances, we cannot say that

counsel's failure to challenge the outcry statements could not have been a plausible

trial strategy.” Id. at *4 (emphasis added).

The instant case is distinguishable from Vega in that, here, as discussed above,

counsel did not attack B.R.'s credibility during cross-examination and B.R. never

wavered in her testimony or in her allegation that appellant was the perpetrator.

Under these circumstances, we can glean no sound trial strategy from defense

counsel's failure to object to the extensive inadmissible testimony of the multiple

outcry witnesses when the only issue at trial was the credibility of the complainant.

See Andrews, 159 S.W.3d at 101–02. We conclude that, even if allowing extensive,

inadmissible testimony to come in without objection constituted counsel's trial

strategy, it cannot reasonably be considered sound trial strategy. See Robertson, 187

S.W.3d at 482–83 (stating that, to prevail, appellant must prove ineffective assistance

by preponderance of evidence and must overcome strong presumption that counsel's

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conduct falls within the wide range of reasonably professional assistance or might

reasonably be considered sound trial strategy). We hold that counsel's performance

was deficient.

2. Opinion testimony

Next, appellant contends that his trial counsel was ineffective because he failed

to object to opinion testimony by Officer Parrie and by Mullin that B.R. was credible.

"It is generally improper for a witness to offer a direct opinion as to the

truthfulness of another witness and such opinion is therefore inadmissible evidence.”

Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref'd) (citing Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997)). "A direct

opinion on the truthfulness of the child” is inadmissible. Yount v. State, 872 S.W.2d

706, 708 (Tex. Crim. App. 1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex.

App.—Texarkana 2004, pet. ref'd). Although an expert may testify to behaviors and

traits that might constitute indicia of manipulation, Schultz, 957 S.W.2d at 59, or that

a child exhibits behavioral characteristics that have been empirically shown to be

common among children who have been abused, Perez v. State, 113 S.W.3d 819, 832

(Tex. App.—Austin 2003, pet. ref'd), a direct comment on a complainant's

"truthfulness” is "absolutely inadmissible.” Sessums, 129 S.W.3d at 247. This rule

applies to expert and to lay witness testimony. Fisher v. State, 121 S.W.3d 38, 41–42

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(Tex. App.—San Antonio 2003, pet. ref'd). This type of testimony is inadmissible

because it does more than "assist the trier of fact to understand the evidence or to

determine a fact in issue”; it decides an issue for the jury. Yount, 872 S.W.2d at 709.

Specifically, appellant complains of the following testimony by Officer Parrie:

[Officer Parrie]: The statements [B.R.] gave to Ms. Benavides and

the statements she gave to Ms. Sika, there were

details that she gave that I thought lend credence to

what [B.R.] was saying.

[Defense Counsel]: Could you share with us what those details were?

[Officer Parrie]: I know one of the details was that she talked about

when she was five years old and the defendant made

her stand on a chair and, you know, had her lower

her pants and then digitally penetrated her.

(Emphasis added.)

Officer Parrie's testimony, which specifically relates facts concerning the

incident when B.R. was five, clearly relates the content of the out-of-court statement.

Officer Parrie testified that these details, in his opinion, "len[t] credence” to B.R.'s

testimony. Hence, Officer Parrie's testimony constituted a direct opinion on the

truthfulness of B.R., which constituted inadmissible evidence. See Yount, 872

S.W.2d at 708; Sessums, 129 S.W.3d at 247.

Appellant also complains that Mullin was permitted to testify that B.R. was

"very credible.” The record shows that Mullin testified during direct examination, in

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relevant part, as follows:

[State]: And did [B.R.'s] disclosure seem valid based on the factors that

you have just described to the jury that you consider when

determining the validity of disclosure?

[Mullin]: Her disclosure seemed very credible.

[State]: And what wasit about her disclosure that seemed credible to you?

[Mullin]: The way she told her story. She was telling it about something

that did happen. She described—especially the first incident that

she remembered, she described body positions and, you know,

various things happening that, again, she put—she put me in a

room, and I was in the room visualizing what was going on based

on the detail that she was able to give.

(Emphasis added.) Like that of Officer Parrie, the testimony of Mullin constituted a

direct opinion on the truthfulness of B.R., which was inadmissible. See Yount, 872

S.W.2d at 708; Sessums, 129 S.W.3d at 247.

In Lane v. State, the appellant contended that his counsel was ineffective for

having failed to properly challenge opinion testimony concerning the truthfulness of

the child complainant. 257 S.W.3d 22, 26 (Tex. App.—Houston [14th Dist.] 2008,

pet. ref'd). There, a children's assessment center representative testified that false

accusations are "extremely rare,” are "a rare occurrence,” and that children "do not

make—tend to make false accusations.” Id. at 24–25. Another representative from

the center testified that "in her opinion formed after counseling [the child

complainant] . . . , [the child complainant] had post-traumatic stress disorder caused

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by childhood sexual abuse.” Id. at 25.

The Lane court reasoned that, because jurors must decide the credibility of the

parties, opinions on the truthfulness of a child complainant's allegations or that a

class of persons to which the complainant belongs is truthful, are prohibited. Id. at

27 (citing Yount, 872 S.W.2d at 708, 710–12). Testimony that false accusations of

childhood sexual assault are very rare had the effect of telling the jury they could

believe the child's testimony. Id. Testimony that it had been determined from

counseling sessions that the child had been sexually assaulted constituted direct

testimony that the complainant was being truthful. Id. Such testimony is prohibited.

Id.

The Lane court concluded that the record on direct appeal was sufficient to

determine whether appellant's trial counsel's performance was deficient. Id. The

court further concluded that, even though there was nothing in the record explaining

counsel's strategy for allowing the testimony into evidence, "there was no

conceivable strategy or tactic that would justify allowing this inadmissible testimony

in front of the jury.” Id. at 27. The court held that counsel's performance was

deficient. Id. at 28.

Here, the sole issue at trial was the credibility of B.R. We conclude that, as did

the court in Lane, although there is nothing in the record explaining counsel's

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strategy for allowing into evidence direct testimony by Parrie and by Mullin

regarding B.R.'s truthfulness, there is no conceivable strategy or tactic that would

justify allowing such inadmissible testimony in front of the jury. See id.at 27–28;

Garcia v. State, 712 S.W.2d 249, 253 (Tex. App.—El Paso 1986, pet. ref'd)

(concluding that failure to enter objection to testimony by detective and child

protective services officer concerning their opinions as to truthfulness of child

complainant "clearly was ineffective assistance”). We hold that counsel's

performance was deficient.

C. Prejudice

Having determined that counsel's performance at trial was deficient, we

consider whether there is a reasonable probability that the result of the proceeding

would have been different. See Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064,

2068; Andrews, 159 S.W.3d at 101. A "reasonable probability” is a probability

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104

S. Ct. 2068.

Here, the record shows that Sika, Mullin, and Benavides were permitted to

testify extensively at trial, without objection by counsel, concerning B.R.'s statements

to each regarding the alleged offense. The State focused heavily on such testimony

throughout its closing argument. In addition, Officer Parrie and Mullin were

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permitted to testify, without objection, that they each believed that B.R. was truthful.

The only other testimony presented by the State at trial was that of B.R. and that of

Dr. L. Thompson, Jr., of the CAC. Dr. Thompson testified only in general terms and

not specifically about B.R.

In sum, the jurywas exposed to a barrage of inadmissible testimony concerning

B.R.'s credibility, when the sole issue at trial was her credibility. See Miller v. State,

757 S.W.2d 880, 884 (Tex. App.—Dallas 1988, pet. ref'd) (concluding that failing

to object to "extensive, inadmissible testimony concerning the only real issue at

trial—complainant's credibility” results in denying appellant effective assistance of

counsel). We can only reasonably conclude that the testimony of B.R. was bolstered

immeasurably by the inadmissible testimony of three outcry witnesses, which

included a school counselor and a CAC representative, and that of Officer Parrie and

Mullin. See Farris, 643 S.W.2d at 697 (concluding, "It would be unreasonable not to

conclude that the testimony of the small children was bolstered immeasurably by

testimony that they were utterly incapable of fantasizing about [the conduct at

issue].”). We conclude that appellant has met his burden to show that he was

prejudiced by the deficiency in counsel's performance. See Strickland, 466 U.S. at

687, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101.

The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of 10

Texas at Houston, participating by assignment.

23

After reviewing the totality of defense counsel's representation, we conclude

that appellant has met his burden under Strickland to show that his counsel was

ineffective.

Accordingly, we sustain appellant's sole issue.

We reverse the trial court’s judgment and remand for further proceedings