Opinion
No. 01-04-00155-CR
Opinion issued December 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 942214.
Panel consists of Justices TAFT, KEYES, and HANKS.
MEMORANDUM OPINION
A jury found appellant, James Eric Young, guilty of aggravated sexual assault of a child and assessed his punishment at confinement for five years. See Tex. Pen. Code Ann. § 22.021(a) (Vernon Supp. 2005). In three points of error, appellant argues that (1) the trial court erred in refusing to submit instructions on sexual assault and indecency with a child; (2) the State presented legally and factually insufficient evidence that the offense occurred in Harris County, Texas; and (3) he received ineffective assistance of counsel. We affirm.
Background
The complainant lived with her mother, her two brothers, and appellant. The complainant recalled that appellant started touching her inappropriately when she was six years old. The touching stopped for a few months, but then resumed after everyone moved into a new house. The complainant testified that she did not tell anyone about the improper touching because appellant said he would be put in jail and the family would not get the things they wanted. When the complainant was in the seventh grade, her family moved into another home. The complainant recalled that appellant made her get on her knees and told her to open her mouth; appellant then put his penis inside her mouth. She remembered appellant making her perform this act three times. Appellant testified that the allegations of sexual assault were not true. Although the complainant testified to improper offenses that occurred from the time she was six until she was much older, the complainant did not tell anyone until she was in high school, when she told her mother. Later, the complainant met with her school counselor, Phyillis Cart, and told her about the sexual assaults. Based on her conversation with the complainant, Cart called Children's Protective Services. The complainant also discussed the sexual assaults with a psychologist, Dr. Victoria Sloan.Analysis Lesser Included Offenses
In his first point of error, appellant argues that the trial court erred when it refused to submit instructions on sexual assault and indecency with a child. Appellant maintains that these lesser included offenses were raised by the evidence and that it was error for the trial court not to include these instructions in the jury charge upon appellant's defense counsel's request. A defendant is entitled to an instruction on a lesser included offense when the proof for the offense charged includes the proof necessary to establish the lesser included offense and there is some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser included offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994) (citing Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993)). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall, 887 S.W.2d at 23. In other words, the evidence must establish the lesser included offense as "a valid, rational alternative to the charged offense." Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997). When the evidence raising the lesser included offense also casts doubt upon the greater offense, the evidence provides the fact finder with a rational alternative of voting for the lesser included offense. Id.Sexual Assault
In his first sub-point of his first point of error, appellant argues that the trial court should have instructed the jury on the lesser included offense of sexual assault. For aggravated sexual assault, the State had to prove beyond a reasonable doubt that appellant intentionally or knowingly caused penetration of the mouth of a child younger than 14 years of age by his sexual organ, without that person's consent. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(ii), (a)(2)(B) (Vernon Supp. 2005). For a defendant to be eligible for conviction of a lesser included offense, the offense must be established by proof of the same or less than all facts required to establish the commission of the offense charged. See Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981). Sexual assault is generally held to be a lesser included offense under the charge of aggravated sexual assault. Dodson v. State, 699 S.W.2d 251, 254 (Tex.App.-Tyler 1985, no pet.). Such is not the case, however, in a charge under section 22.021(a)(2)(B), which statutorily mandates the offense of aggravated sexual assault when "[a] person commits [any of the offenses categorized under subsection (1)] . . . if the victim is younger than 14 years of age." See Tex. Pen. Code Ann. § 22.021(a)(2)(B). A defendant indicted pursuant to section 22.021(a)(2)(B) cannot be found guilty of the lesser included offense of sexual assault. Villareal v. State, 811 S.W.2d 212, 218 (Tex.App.-Houston [14th Dist.] 1991, no pet.). To meet the threshold for inclusion of sexual assault as a lesser included offense, appellant was required to show that the lesser offense was included within the proof necessary to establish the offense charged and that the record contained some evidence that proved him guilty only of the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). Appellant was indicted under section 22.021(a)(2)(B) of the Texas Penal Code and, therefore, does not meet the first prong of the test. See Villareal, 811 S.W.2d at 818. Accordingly, the trial court did not err in failing to submit the lesser included offense of sexual assault.Indecency with a Child
In his second sub-point of his first point of error, appellant argues that the trial court should have instructed the jury on the lesser included offense of indecency with a child. A person commits the offense of indecency with a child if, with a child younger than 17 years of age and not the person's spouse, whether the child is of the same or opposite sex, the person engages in sexual contact with the child or causes the child to engage in sexual contact or the person exposes his or her genitals, knowing the child is present, with the intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.11(a)(1)(2)(a) (Vernon 2003). Indecency with a child may be a lesser included offense of aggravated sexual assault on a case-by-case basis. See Cunningham v. State, 726 S.W.2d 151, 153 (Tex.Crim.App. 1987). "What must be decided in light of the offense charged and the facts proved is whether in this cause indecency with a child is a lesser included offense of the one alleged." Id. (citing Campbell v. State, 571 S.W.2d 161 (Tex.Crim.App. 1978)). The appellant must first show that the proof for the offense charged includes the proof necessary to establish the lesser included offense. Id. Here, that burden is satisfied if the evidence at trial raised the issue that appellant intended to arouse or gratify his sexual desire while in the course of committing the alleged penetration or contact. See id.; see also Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App. 1998) (in context of double jeopardy case, stating a charge on the lesser included offense of indecency with a child, in addition to aggravated sexual assault, is required if the evidence at trial raised the issue that the defendant intended to arouse or gratify his sexual desire while in the course of committing the alleged penetration or contact). The State concedes that appellant satisfied the first prong of the test. The appellant must next show that some evidence in the record would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of indecency with a child. See Rousseau, 855 S.W.2d at 673-75; Easter v. State, 867 S.W.2d 929, 941 (Tex.App.-Waco 1993, pet. ref'd). This requirement may be satisfied either (1) if evidence affirmatively refutes or negates an element establishing the greater offense or (2) the evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996). Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of the issue, and this court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. See id. at 18; Havard v. State, 800 S.W.2d 195, 216 (Tex.Crim.App. 1989); Upchurch v. State, 23 S.W.3d 536, 538 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). The Court of Criminal Appeals has stated:It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted.Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). Appellant contends the following evidence satisfied the second prong: (1) the complainant testified about appellant's touching and rubbing her private parts, but not about penetration; (2) some of the incidents occurred when the complainant was younger than 14; and (3) neither outcry witness testified to penetration. Appellant asserts that this evidence is subject to two different interpretations, one of which rebuts an element of the greater offense. Here, the State's indictment alleged that appellant intentionally and knowingly caused the penetration of the mouth of the complainant, a person younger than fourteen years of age, with his sexual organ. The evidence on which appellant relies does not show that he could be guilty only of indecency with a child because the evidence does not negate or rebut an element of aggravated sexual assault. At best, appellant's evidence shows that the outcry witnesses were told only about assaults that occurred without penetration — whereas the complainant actually testified to the penetration. None of the outcry witnesses testified that penetration of the complainant's mouth did not occur. Appellant's reliance on evidence that the sexual assaults occurred when the complainant was younger than 14 years of age is also misplaced. Whether the complainant was younger than 14 neither affirmatively refutes nor negates an element establishing aggravated sexual assault, nor is her age subject to two different interpretations. See Schweinle, 915 S.W.2d at 19. Accordingly, the trial court did not err in failing to submit the lesser included offense of indecency with a child. We overrule appellant's first point of error. Venue In his second point of error, appellant argues that the State presented legally and factually insufficient evidence that venue was proper in Harris County, Texas. Appellant raised this objection when he asked the trial court for an instructed verdict on the ground that the State had not proven that venue was proper in Harris County. The trial court denied his motion. As a general rule, venue is proper in the county in which a sexual offense is alleged to have taken place. Tex. Code Crim. Proc. Ann. art. 13.15 (Vernon 2005). The burden of proof is on the State to establish proper venue by a preponderance of the evidence. Id. art. 13.17 (Vernon 2005). Failure to prove venue in the county of prosecution is reversible error. See Black v. State, 645 S.W.2d 789, 791 (Tex.Crim.App. 1983). C.Y., the complainant's mother, testified that the family lived at 126 East Forest Lane, which is in Harris County. The complainant testified that, while she was living on East Forest Lane, appellant put his penis inside her mouth. We conclude that the State presented legally and factually sufficient evidence that venue was proper in Harris County. We overrule appellant's second point of error.
Ineffective Assistance of Counsel
In his third point of error, appellant asserts that his defense counsel provided ineffective assistance through the following: (1) he failed to request a hearing to contest the State's intent to use hearsay statements pursuant to article 38.072 of the Texas Code of Criminal Procedure; (2) he failed to object to hearsay testimony; (3) he failed to object to extraneous offenses; (4) he failed to object to opinion testimony; (5) he failed to challenge an expert witness; (6) he failed to object to a comment on appellant's pre-arrest silence; (7) he failed to object to improper jury argument; (8) he asked improper questions during direct examination; and (9) he failed to object to a comment on punishment during the guilt-innocence stage of trial. In his tenth sub-point of his third point of error, appellant contends that his failure to raise ineffective assistance of counsel in his motion for new trial was not a voluntary waiver of his Sixth Amendment right to counsel. Standard of Proof Both the United States and Texas Constitutions guarantee an accused the right to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App. 1997). To prove ineffective assistance of counsel, an appellant must show that (1) defense counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for defense counsel's deficient performance. Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). We apply a strong presumption that defense counsel was competent. Thompson, 9 S.W.3d at 813. It is presumed that defense counsel's strategy was sound and that the representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant has overcome these presumptions, we are limited to the facts of the case. Thompson, 9 S.W.3d at 813. An appellant "making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S. Ct. at 2052. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The State contends that, because there was no motion for new trial hearing to establish the reasons for defense counsel's actions and because counsel's strategy cannot be determined from the record, appellant has not rebutted the presumption that he received reasonable assistance of counsel. See Thompson, 9 S.W.3d at 813. The Court of Criminal Appeals of Texas has held, however, that a motion for new trial claiming ineffective assistance of counsel is not always required to preserve that claim. See Robinson v. State, 16 S.W.3d 808, 809-10 (Tex.Crim.App. 2000). A timely filed appeal is a proper procedure for seeking relief regarding ineffective assistance of counsel. See id. A hearing on a motion for new trial is required only when the motion raises matters extrinsic to the record. See Castoreno v. State, 932 S.W.2d 597, 605 (Tex.App.-San Antonio 1996, pet. ref'd). When an appellant's allegations of ineffective assistance of counsel are firmly founded and affirmatively demonstrated in the record, no evidentiary hearing is required. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996); Castoreno, 932 S.W.2d at 605. Therefore, we address whether the record affirmatively demonstrates ineffective assistance of counsel. Article 38.072 Hearing In his first sub-point of his third point of error, appellant asserts that his defense counsel failed to request an article 38.072 hearing to contest the State's intent to use hearsay statements. Alternatively, he contends that his counsel did ask for a hearing, and, when the trial court did not grant it, his counsel lodged no objection. Article 38.072 provides that the trial court must hold a hearing outside the presence of the jury to determine whether an outcry statement is reliable. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The record does not indicate whether appellant's defense counsel requested an article 38.72 hearing or whether such a hearing occurred. Thus, this complaint raises matters extrinsic to the record. It is appellant's burden to bring forth an adequate record. See Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We cannot speculate as to whether these events transpired. Jackson, 877 S.W.2d at 771. We overrule appellant's first sub-point of his third point of error. Hearsay Testimony Appellant also asserts that defense counsel lodged no objection when the State offered the allegedly hearsay testimony. Had the trial court already determined that the testimony was admissible, defense counsel may have decided not to object to the evidence so as not to call the jury's attention to it. See Duren v. State, 87 S.W.3d 719, 734 (Tex.App.-Texarkana 2002, no pet.). We will not speculate as to counsel's trial strategy. See Jackson, 877 S.W.2d at 771. We overrule appellant's second sub-point of his third point of error. Extraneous Bad Acts In his second sub-point of his third point of error, appellant argues that defense counsel erred by not objecting to extraneous bad acts. Specifically, appellant asserts that defense counsel did not object when the complainant's mother said she had been assaulted by appellant. Appellant concedes that the State filed a notice of intent to use extraneous offenses, but this offense was not in the notice. The complainant's mother testified that "we got into a big argument, had a fight, called the police because he had threw me up against the wall." Her testimony continued as follows:STATE: When this happened, was this the first time that he been physically abusive with you?
WITNESS: No. No.
STATE: Okay.
WITNESS: He had, matter of fact, broke his finger —
. . .
DEFENSE COUNSEL: Since we're getting into extraneous material here —
COURT: She's not going into anything between him and her where the complainant was not present.Appellant asserts that his defense counsel should have objected to the evidence that appellant was abusive with the complainant's mother and obtained a ruling on the objection. However, the extraneous act as testified to by the complainant's mother had already been heard by the jury when the complainant testified that appellant had beaten her mother. Thus, defense counsel may have decided not to object to this particular testimony because the same testimony had already been heard by the jury. Defense counsel's decision not to object may have been the result of a reasoned trial strategy. We will not speculate as to trial counsel's strategy. See Jackson, 877 S.W.2d at 771. Moreover, the jury charge included an instruction not to consider extraneous offenses in determining whether appellant committed the charged offense. Thus, even if we were to find that this testimony was inadmissible, appellant has not shown that the result of the proceeding would have been different had defense counsel objected. We overrule appellant's third sub-point of his third point of error. Improper Opinion Testimony In his fourth sub-point of his third point of error, appellant asserts that trial counsel failed to object to three witnesses, Phyllis Cart, Chervyl Young, and Dr. Sloan, who gave improper opinion testimony that they believed the complainant. Appellant first complains about Cart, the complainant's school counselor. After Cart testified to what the complainant had told her about the sexual assaults, the following exchange took place:
STATE: Okay. What — after you — after you talked to her, what did you think about what she told you?
CART: I believed her.Appellant next complains about the testimony of Young, the complainant's mother. After restating what the complainant had told her about the sexual assaults, the following exchange took place:
STATE: Now, has she ever lied to you about anything big?
YOUNG No.
STATE: Do you feel like she was lying to you about [the sexual assaults]?
YOUNG: No.A witness may not give an opinion concerning the truth or falsity of a child complainant's allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997); Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App. 1993); Ayala v. State, 352 S.W.2d 955 (Tex.Crim.App. 1962); Taylor v. State, 774 S.W.2d 31, (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). Even expert testimony concerning a complainant's propensity to tell the truth is impermissible. Miller v. State, 757 S.W.2d 880, 883 (Tex.App.-Dallas 1988, pet. ref'd). In Miller, three witnesses testified that the complainant was telling the truth about a sexual assault. The court of appeals concluded that the testimony of each witness who testified that he or she thought the complainant was telling the truth was inadmissible testimony that should have been objected to by defense counsel. See id. at 883. The court of appeals stated that it could discern no trial strategy in defense counsel's failure to object to inadmissible testimony concerning the only issue at trial — the complainant's credibility. Thus, the court of appeals held that defense counsel's performance at trial was deficient. Here, the State does not present any plausible trial strategy for defense counsel's failure to object to the inadmissible testimony. In fact, the State advances no strategy whatsoever. The State merely responds that we should overrule appellant's ineffective assistance claim because appellant did not raise ineffective assistance in his motion for new trial, and, therefore, we would have to speculate on defense counsel's strategy. We conclude that defense counsel had no sound trial strategy in failing to object to the inadmissible testimony concerning the complainant's credibility. See Sessums v. State, 129 S.W.3d 242, 248 (Tex.App.-Texarkana 2004, pet. ref'd) (concluding that there is no conceivable strategy or tactic that would justify allowing witnesses to testify that the complainant was truthful in front of a jury). Thus, we hold that defense counsel performed deficiently at trial. Having concluded that appellant received deficient assistance of counsel, we turn to the second prong of Strickland — whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67. We consider that the State referenced the witnesses' improper testimony during its closing argument without objection from appellant's counsel. The State made the following closing argument:
STATE: No one from the defendant's family, from the congregation, from the community came down here to say [the complainant] is lying about the defendant sexually abusing her. The reason that's important is the defense has the same subpoena power we do. They could bring 300 witnesses to come down here and they didn't. They brought you the defendant to come down here and say, she says I raped her, I did not.
DEFENSE COUNSEL: Your honor, I'm going to object. As counsel knows, we cannot put in character testimony on guilt/innocence. There are no witnesses to the alleged acts. That's misleading, and I object.
COURT: Overruled.
STATE: Okay. And the Judge overruled that objection because no one says she is lying, all right? That's important because there are people that say she is telling the truth, okay? Her mother obviously supported her, because she kicked the defendant out right away. We know that Phyllis Cart supported her because she told y'all she believed her. We know Dr. Sloan supported her as well because she diagnosed her with post traumatic stress disorder, and the basis of that was the sexual abuse.In reviewing the entire record in this case, we do not think appellant has met his burden of showing, by a preponderance of the evidence, that the result of the proceeding would have been different had defense counsel objected to the improper testimony. The central issue at trial was whether appellant assaulted the complainant. The complainant testified that she had been sexually assaulted numerous times by appellant. Cart also testified that the complainant told her that appellant had hurt her and fondled her. The complainant's mother testified that the complainant had stated that appellant had been touching her, feeling her breasts, and touching her private area. The complainant's mother recalled that appellant told the complainant that if she told anyone about the abuse, appellant would kill her. Dr. Sloan, a clinical psychologist, testified that the complainant had symptoms that indicated that she had been sexually abused. Moreover, the State did not rely extensively on the brief, but inadmissible testimony. Although the jury found appellant guilty, it assessed his punishment at the lower end of the sentencing range. Finally, appellant makes only a general argument on how the result of the proceeding would have been different but for counsel's deficient conduct. Specifically, appellant argues that there is reasonable probability that the result of trial would have been different had the witnesses' testimony about the complainant's credibility not been present. Accordingly, we conclude that appellant has not met the second prong of Strickland. See Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67. We overrule appellant's fourth sub-point within his third point of error. Expert Witness Diagnosis In his fifth sub-point of his third point of error, appellant argues that he received ineffective assistance of counsel because his defense counsel failed to seek a Daubert hearing to challenge the State's expert's reliability. He argues that the record is clear that defense counsel did not request a Daubert hearing, nor was one undertaken outside the presence of the jury. Appellant's complaint raises matters that are extrinsic to the record. To conclude that defense counsel acted deficiently would call for us to speculate, which we will not do. See Jackson, 877 S.W.2d at 771. Moreover, appellant does not cite any authority holding that the failure to request a Daubert hearing constitutes ineffective assistance of counsel. See Tex.R.App.P. 38.1(h). We overrule appellant's fifth sub-point of his third point of error. Comment on Appellant's Pre-Arrest Silence In his sixth sub-point of his third point of error, appellant argues that the testimony of Detective Fitzgerald allowed the State to comment on appellant's pre-arrest silence. Appellant argues that defense counsel's failure to object to Detective Fitzgerald's testimony resulted in a violation of appellant's rights under the Fifth Amendment of the U.S. Constitution and the Texas Constitution. See U.S. Const. amend V; Tex. Const. art. I § 10. Appellant argues that his defense counsel should have objected to the following exchange between the State and Detective Fitzgerald:
STATE: After you got statements from her and her mother, talked to them, did you have an opportunity to contact the defendant?
WITNESS: Yes, I did.
STATE: And did you ask him, you know, whether this had happened?
WITNESS: Yes, I did.
STATE: Okay. Why did you do that?
WITNESS: We were trying to determine if this occurred, and if it did, who did it.
STATE: Okay. So, would it be fair to say you wanted to get his side of the story?
WITNESS: Absolutely.
STATE: So, what did he say?
WITNESS: Basically, he didn't do it, and he gave a few reasons why he thought the child was making this up.
* * *
STATE: Did you offer him an opportunity to give you the names of some folks that could support his story?
WITNESS: Yes, I did.
* * *
STATE: Okay. And what were you supposed to do with those names?
WITNESS: He was supposed to call me with their phone numbers or a way to contact them.
* * *
STATE: Okay. And did he follow up on providing you with ways to get a hold of these two fellas?
WITNESS: No, ma'am. He never contacted me."Prearrest silence is a constitutionally permissible area of inquiry." Waldo v. State, 746 S.W.2d 750, 755 (Tex.Crim.App. 1988); see Rodriguez v. State, 137 S.W.3d 228, 231 n. 1 (Tex.App.-Houston [1st Dist.] 2004, no pet.). The exchange between the State and Detective Fitzgerald relates to comments made prior to appellant's arrest. Accordingly, we conclude that defense counsel did not act deficiently by failing to object to Detective Fitzgerald's testimony regarding appellant's statements before arrest. We overrule appellant's sixth sub-point of his third point of error. Burden of Proof and Proper Closing Argument In his seventh sub-point of his third point of error, appellant argues that the State inferentially shifted the burden of proof. Appellant cites the same portion of Detective Fitzgerald's testimony discussed in the previous point and the State's closing argument. We have already determined that Detective Fitzgerald's testimony regarding appellant's pre-arrest statements was not improper. Thus, we consider whether the State's closing arguments improperly shifted the burden of proof to appellant. Appellant objects to the following portion of the State's closing argument:
No one from the defendant's family, from the congregation, from the community came down here to say [the complainant] is lying about the defendant sexually abusing her. The reason that's important is the defense has the same subpoena power we do. They could bring 300 witnesses to come down here and they didn't. They brought you the defendant to come down here and say, she says I raped her, I did not.As we noted previously, appellant's defense counsel objected to this portion of the State's closing argument. Defense counsel stated, "I'm going to object. As counsel knows, we cannot put in character testimony on guilt/innocence. There are no witnesses to the alleged acts. That's misleading, and I object." We conclude that appellant's defense counsel properly objected to the State's closing argument. Thus, appellant has not satisfied the first prong of ineffective assistance of counsel. We overrule appellant's seventh sub-point of his third points of error. Improper Questions on Direct Examination In his eighth sub-point of his third point of error, appellant argues that defense counsel asked him improper questions during direct examination. Appellant contends that the following exchange implied appellant's guilt to the jury.
DEFENSE COUNSEL: Please state your name.
APPELLANT: James Eric Young.
COUNSEL: Reverend Young, are you aware that the Constitution of the United States, plus the laws of Texas, give you the right to remain silent?
APPELLANT: Yes, I do.
COUNSEL: You realize you do not have to testify in this case?
APPELLANT: Yes, I do.
COUNSEL: Knowing that, do you elect to testify in this case?
APPELLANT: Yes, I do.
COUNSEL: Do you want to testify in this case?
APPELLANT: Yes.We cannot conclude that this exchange implied appellant's guilt. Quite simply, defense counsel may have been trying to communicate to the jury that although appellant could elect not to testify, he agreed to testify because he had nothing to hide. We conclude that because such a strategy is reasonable, appellant has not shown that his counsel acted deficiently by placing appellant's decision to testify on the record. We overrule appellant's eighth sub-point of his third point of error. Improper Comment on Punishment In his ninth sub-point of his third point of error, appellant argues that the State adduced evidence concerning punishment during the guilt-innocence stage of trial and during its closing argument. Appellant complains of the following exchange that occurred between the State and the complainant during the guilt-innocence stage of trial:
STATE: [W]e've talked about this case, haven't we?
WITNESS: Yes, ma'am.
STATE: And I told you that this was a very serious case, right?
WITNESS: Yes, ma'am.
STATE: Okay. And I told you that, you know, the things that you had told me happened could result in the defendant going to prison?
WITNESS: Yes, ma'am.
STATE: You know that, right?
WITNESS: Yes, ma'am.
STATE: For anywhere between 5 and 99 years or life in prison. You know that right?
WITNESS: Yes, ma'am, I do.
STATE: I told you also that if the jury decides they want to give him probation for what he did to you, that that is something they could choose to do as well, right?
WITNESS: Yes, ma'am.Appellant also argues that the State's closing argument adduced evidence concerning punishment during the guilt-innocence stage of trial. He complains about the following portion of the State's closing argument:
The last thing I listed is why would she testify. I touched on this before. She knows that if he gets convicted, he is going to be punished, okay? And that he could go to prison or get probation. So, you have to think in order to find him not guilty that she hates him that much, a man that provided for her, a man that bought her stuff, a man that took her to New Orleans, a man that is nice to her. That she hates him so much that she is going to come down here and risk him getting convicted, going to prison, getting probation, being punished for what he did to her, that she is going to lie.Appellant does not cite any authority for his argument that the abovementioned testimony and closing argument was improper, that his counsel acted deficiently in failing to object, or that but for counsel's deficient conduct, the result of the proceeding would have been different. Accordingly, appellant has waived any complaint to this testimony. See Tex. R. App. 38.1(h); see also Perez v. State, 87 S.W.3d 648, 652 (Tex.App.-San Antonio 2002, no pet.) (overruling appellant's ineffective assistance point of error because appellant failed to show how he was prejudiced by counsel's failure to object to comment about punishment during guilt-innocence stage of trial). We overrule appellant's ninth sub-point of his third point of error.