Joseph Cobia v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-99-00457-CR
Joseph COBIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-0435
Honorable Mark Luitjen, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: August 16, 2000

AFFIRMED

Joseph Cobia appeals his conviction by a jury for aggravated sexual assault of a child. In one issue, Cobia argues his trial counsel's representation was ineffective because he failed to object to the introduction of opinion testimony from the State's expert witness that went directly to the credibility of the complainant, Cobia's daughter J.C.

Facts

Cobia was charged with Aggravated Sexual Assault of a Child after his daughter J.C. revealed Cobia sexually assaulted her when she was nine years old. J.C. was fourteen at the time of trial. The State offered the testimony of three witnesses: J.C., Dr. Shirley Menard, and Jessica Mireles Garza, J.C.'s mother, who was the outcry witness. The defendant testified in his own behalf. There were no other witnesses.

J.C. testified she was nine when her father sexually assaulted her. Cobia came into the master bedroom where J.C. was sleeping with her younger brother. Cobia spoke to her, and by his words and tone of voice, it was apparent he was angry at her for getting the floor wet after her shower earlier in the evening. Cobia told his daughter she better not tell anyone "what he was going to do right then . . . because he would hurt us [J.C., her brother, and mother]." Cobia pulled J.C.'s underwear down to her knees, lowered his own shorts, and penetrated J.C.'s vagina with his penis. J.C. testified she did not tell anyone about this because she was scared her father would make good on his threats. At age thirteen, after a nightmare in which her father raped her younger sister, J.C. finally told her mother what Cobia had done.

At trial, the State's expert witness, Dr. Shirley Menard, Ph.D., gave testimony about her physical examination of and discussion with J.C. Dr. Menard, a pediatric nurse practitioner, who teaches both nursing and medicine at the University of Texas Health Science Center at San Antonio, was qualified by the court as an expert in conducting examinations on children who are the victims of physical and sexual abuse. Dr. Menard testified her physical examination of J.C. led her to conclude the child's vagina had been penetrated prior to the onset of puberty. The specific portion of her testimony at issue is as follows:

Q: Are you pretty good, based on your experience in talking to these children and based on your physical examination of the child, to make a determination as to whether or not there was anything in what was told to you concerning thedescription of the event to lead you to -to believe them, or to-as to what they said is true and consistent?

A: I believe that what she said was true, and with the evidence that I found, convinced me even more so.

There was no objection lodged by Cobia's defense attorney.

Discussion

To obtain a reversal on ineffective assistance of counsel during the guilt/innocence phase of trial, appellant must show (1) counsel's performance was so deficient he was not functioning as the counsel guaranteed by the sixth amendment; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim. App. 1992). This standard does not require the defendant be found not guilty or assessed a more lenient punishment absent counsel's errors. See Doherty v. State, 781 S.W.2d 439, 442, (Tex. App.-Houston [1st Dist.] 1989, no pet.). Rather, according to Strickland, there must be a reasonable probability of a different result; that is, a probability sufficient to undermine confidence in the outcome. 466 U.S. at 694, 104 S. Ct. at 2068.

The constitutional right to counsel does not mean errorless counsel or counsel whose competency is judged by hindsight. See Doherty, 781 S.W.2d at 441. Rather, the right means counsel reasonably likely to render reasonable effective assistance. See id. A reviewing court must presume adequate assistance and that all significant decisions were made in the exercise of reasonable professional judgment. See Strickland v. Washington, 466 U.S. at 690, 104 S. Ct. at 2066; Roberson v. State, 852 S.W.2d 508, 512 (Tex. Crim. App. 1993). We judge the attorney's representation by reviewing the totality of the representation, rather than isolated acts or omissions. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Furthermore, counsel's performance must be evaluated from counsel's perspective at the time. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Cobia cites Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) to support his claim of ineffective assistance. In Yount, the State's expert in an aggravated sexual assault of a child case was asked by the prosecutor, "[o]f those hundreds [of cases of sexual abuse] that you've examined, how many have you found to be unfounded?" See Yount, 872 S.W.2d at 707-08. The defense attorney's objection was overruled and the witness testified, "I have seen very few cases where the child was actually not telling the truth." See id. The court held expert testimony that a particular witness is truthful is inadmissible under rule 702 of the Texas Rules of Evidence. See id. at 709.

Discussing its earlier holding in Cohn v. State, 849 S.W.2d 817, 819-820 (Tex. Crim. App. 1993), the court explained expert testimony that certain behavioral traits are consistent with sexual abuse is admissible under Tex. R. Evid. 702. The fact the testimony has the incidental effect of corroborating the testimony of another witness does not render the testimony inadmissible. Similarly, expert testimony that certain physical characteristics are consistent with abuse is not considered impermissible bolstering, even when a victim has testified to being abused and has not been impeached by the opposing party. See Yount, 872 S.W.2d at 709-711. However, it is impermissible to elicit a direct comment on the truthfulness of a witness' testimony. See Yount, 872 S.W.2d at 709. Likewise, it is impermissible to testify that a class of persons, to which a witness belongs, is truthful. See id. at 711.

The testimony at issue here was inadmissible. The expert had already testified that J.C. exhibited physical injuries consistent with pre-pubescent vaginal penetration. Such testimony is permissible under Yount and Cohn. However, testimony that "I believe what she said was true" falls outside the permissible scope of expert testimony under Rule 702.

Although it appears Cobia's counsel erred by failing to object to the expert's testimony, any judicial review of a defendant's claim of ineffective assistance of counsel must be highly deferential to trial counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim App. 1999). In Thompson, the defendant's attorney failed to object to impermissible hearsay testimony that several non-testifying witnesses had identified Thompson as the perpetrator of a murder. The court held the error did not constitute ineffective assistance of counsel. The court focused its discussion on the fact that the record was silent as to Thompson's attorney's motivation. See Thompson, 9 S.W.3d at 814.

As in Thompson, the record in this case is silent as to why Cobia's attorney failed to object to the testimony at issue. Because the claimed error is one of omission by counsel, the presumption that counsel's conduct was reasonable is not overcome. Indeed, in light of the court's holding in Thompson, in cases where the record contains no discernible explanation of counsel's actions, it will always be very difficult to overcome the presumption that the failure to object was part of a reasonable trial strategy. See id. (1) We hold Cobia has failed to meet the first prong of the Strickland test. The judgment of the trial court is affirmed.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. In Thompson, the court discussed the need to have a record detailing the claimed ineffectiveness, and opined that a collateral attack would, in most cases, be a better method than direct appeal for raising ineffective assistance of counsel claims. See Thompson, 9 S.W.3d at 814.