KENT DEAN ELLIFF, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 10, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01434-CR
............................
KENT DEAN ELLIFF, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81412-04
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Morris
        A jury convicted Kent Dean Elliff of indecency with a child. He now complains the trial court erred by allowing the jury to consider outcry testimony for the purpose of deciding his guilt and by admitting certain testimony. He further complains he received ineffective assistance of counsel. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
        Appellant is the father of the child complainant's former best friend. One night, when the ten- year-old complainant was spending the night at appellant's home, appellant came into the room where the girls were sleeping. He began rubbing the complainant's leg from the knee down for five to ten seconds, then he left the room. Approximately five minutes later, he returned to the room and briefly rubbed from the middle of the complainant's thigh down to her knee then left again. At that point, the complainant turned onto her stomach because appellant's actions had made her feel uncomfortable. Appellant returned ten minutes later and rubbed the complainant's back and buttocks for ten to fifteen seconds. He left again, and the complainant rolled back over so that appellant could no longer touch her buttocks.
        Once again, appellant returned to the room. He began to rub the complainant's stomach, then after ten to fifteen seconds he reached his hand through the leg of the child's shorts and rubbed her vagina on top of her underwear for ten to fifteen seconds. After appellant left, the complainant woke appellant's daughter and told her what had happened. Later, the complainant told a different friend what had happened, and eventually she told the friend's mother. The mother testified at trial that the complainant had said appellant “had his hands inside her panties and was feeling her private parts.”
        When he was interviewed by police, appellant gave conflicting statements. He first denied doing anything to the complainant. He later claimed he might have touched her vagina unintentionally. He gave a written statement admitting he had rubbed his daughter's back and the complainant's stomach and leg “to give the girls some family love.” He claimed that if the complainant thought he had touched her improperly, it was not intentional and he was sorry.
        Appellant's wife and daughter testified in his defense. The wife testified that after the alleged offense, the complainant continued to visit their house just as she always had. The daughter claimed the complainant never told her that appellant had touched her.
Discussion
        In his first issue, appellant complains the trial court erred by permitting the jury to consider the complainant's outcry statement to a friend's mother for the purposes of proving the touching had actually occurred. An outcry statement by a child admitted under Texas Code of Criminal Procedure article 38.072 constitutes substantive evidence of the crime committed and can be, by itself, sufficient to support a conviction. See Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1993); see also Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The cases relied upon by appellant to support his claim that the evidence could not be considered as proof the offense had occurred involve a now-repealed version of code of criminal procedure article 38.07,and are therefore inapplicable to this case. Compare Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (discussing article 38.072), with Grogan v. State, 713 S.W.2d 705, 709 (Tex. App.-Dallas 1986, no pet.); Heckathorne v. State, 697 S.W.2d 8, 12 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd); Brown v. State, 649 S.W.2d 160, 162 (Tex. App.-Austin 1983, no pet.) (discussing former article 38.07).   See Footnote 1  We therefore resolve appellant's first issue against him.
        In his second and third issues, appellant complains the trial court erred by permitting testimony by an expert on sex offenses against children. Appellant first complains the trial court erred by refusing to conduct a hearing under rule of evidence 705(b) regarding the bases for the expert's testimony. Rule 705(b) provides:
 
        Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall . . . be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
 
Tex. R. Evid. 704(b).
        Through a written motion and an oral request at trial, appellant asked the trial court for a hearing outside the presence of the jury “to determine whether . . .. [the expert's] testimony is relative [sic] to guilt/innocence.” This overruled objection does not preserve appellant's current complaint that he was entitled to a hearing regarding the underlying facts upon which the expert would be relying. See Tex. R. App. P. 33.1(a)(1)(A). Thus, appellant's second issue is waived for appeal.
        Appellant complains in his third issue that the same expert was permitted to offer his opinion that appellant was “minimizing the truth” during his police interrogation. The expert testified that “[i]t's a very common trait in sex offenders to minimize their own behavior” and not “talk about the actual sex offense itself because there's consequence involved in that.” When asked if he saw minimizing traits in appellant's responses to police, the expert stated that he did and gave an example of appellant's minimizing his behavior.
        Appellant specifically contends the testimony was objectionable because an expert may not offer a direct opinion on the truthfulness of a complainant's allegations or give an opinion that a class of persons is truthful or not truthful. Appellant did not object to this testimony when it was offered at trial. Before the testimony, appellant was allowed a running objection based on his earlier complaint about the “admissibility of [the expert's] testimony.” This general running objection, however, did not preserve his current complaint for appeal. See id. We resolve appellant's second and third issues against him.
        In his fourth and final issue, appellant complains he received ineffective assistance of counsel at trial because his attorney repeatedly allowed the State's witnesses to testify about the credibility of appellant and of the child complainant. He complains in particular that a forensic interviewer testified without objection that the complainant's answers did not demonstrate any coaching or raise any red flags, the nurse who examined the complainant testified without objection that she did not see anything that made her think the complainant was being untruthful, and the sex offense expert testified that he believed appellant was engaged in minimizing behavior, a trait common in sex offenders, during his police interview.
        We examine ineffective assistance of counsel claims under well-known standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). It is appellant's burden to show by a preponderance of the evidence trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
        We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. The court of criminal appeals has made clear that, in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111.
        Here, appellant did not complain of ineffective assistance of counsel either at trial or in his motion for new trial. We do not know, therefore, why appellant chose to refrain from objecting to the witnesses' allegedly inadmissible testimony. It is possible, as pointed out by the State, that counsel was pursuing a “strategy to show the investigators had made up their minds without conducting a proper investigation” or to show “the witnesses were biased in favor of the State's case, thus impacting their own credibility.” Based on the record before us, we conclude appellant has failed to show ineffective assistance of counsel. We resolve his fourth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071434F.U05
 
Footnote 1 The additional opinion cited by appellant for this proposition erroneously relies upon the caselaw interpreting now-outdated version of article 38.07. See Smith v. State, 40 S.W.3d 147 (Tex.App.-Texarkana 2001, no pet.).