Morgan, Nathan Ross v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Opinion filed July 3, 2002

Affirmed and Opinion filed  July 3, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-01-00809-CR

14-01-00810-CR

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NATHAN ROSS MORGAN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________

On Appeal from 178th District Court

Harris County, Texas

Trial Court Cause Nos. 849,299 and 849,300

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O P I N I O N

Appellant, Nathan Ross Morgan, appeals his conviction for sexual assault of a child and indecency with a child. In six issues, appellant contends (1) the trial court erred in admitting his written statement into evidence; (2) the trial court erred in admitting evidence of extraneous offenses; (3) the trial court erred in refusing to permit testimony regarding the complainant s style of dress when in his presence; and (4) he received ineffective assistance of counsel. We affirm.

 

I. Background

Appellant is the complainant s stepfather. The complainant testified that appellant sexually abused her from the time she was seven until she was fifteen. The abuse occurred four or five times per week until she turned thirteen. The frequency of the abuse lessened when she turned thirteen, then increased again when she turned fifteen. The last episode occurred in January or February 2000. Most of these episodes occurred in her bedroom. She would wake up with appellant touching her vagina. Sometimes he touched her vagina over her underwear, and sometimes he touched the outside of her vagina under her underwear. During these episodes, she pretended to be asleep because she was frightened. However, she would move, prompting appellant to stop touching her and leave the room. On two or three occasions, appellant put his finger inside her vagina, causing her pain. On another occasion, she awoke when appellant, who was naked, grabbed her hand and placed it on his penis, but she immediately withdrew her hand. On one or two occasions, appellant exposed himself to the complainant. On one such occasion, appellant stood by her bed and masturbated.

The complainant did not tell her mother about the abuse because she was afraid that she would lose her mother and family and because she knew that her mother would stay with appellant. However, she eventually reported the abuse to one of her adult brothers. Her brothers then removed her from the home. She briefly stayed with an aunt before going to live with her natural father in Maryland. The complainant s mother continued to live with appellant after the complainant reported the abuse. The mother died a week before trial.

A doctor at the Children s Assessment Center physically examined the complainant. She did not find any abnormalities, which did not confirm or rule out sexual abuse. She did note that the complainant had suffered a urinary tract infection a year before the examination, which could be an indicator of sexual abuse.

On May 31, 2000, appellant gave a statement to the police:

I am here today because my stepdaughter, [complainant], has accused me of sexually abusing her. I have been a good stepfather to [complainant] and tried to give her everything that she has wanted. I have in the past clipped her toenails, rubbed her legs and back and if I did touch her vagina, then it was by mistake. I am not saying that I did, but if I did it was by mistake. I have been using crack cocaine for approximately a year and I also used to drink a lot of alcohol to the point that I was intoxicated. If I was to ever have touched [complainant] on her vagina on the outside or the inside of her vagina, then it would have been while I was under the influence of crack cocaine and alcohol, but I don t remember ever doing that before to [complainant] to the best that I can remember. I have gone into her bedroom before to cover her up and to kiss her goodnight before also. If [complainant] was to have seen me masturbating myself, then it was because she had invaded my privacy and was seeing something that she should not have seen. This is all that I know about the allegation of me sexually abusing [complainant].

Appellant did not testify at trial. Several friends and relatives of appellant testified that he and the complainant appeared to have a normal father and daughter relationship.

At trial, the jury found appellant guilty of indecency with a child and sexual assault of a child. The trial court sentenced appellant to ten years imprisonment. This appeal followed.

II. Evidentiary Rulings

Appellant s first five issues address the trial court s evidentiary rulings. We review a trial court s ruling on the admissibility of evidence for abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An abuse of discretion occurs when a trial court s actions are arbitrary and unreasonable, without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). As long as the trial court s ruling was at least within the zone of reasonable disagreement, we should not reverse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh g). If we determine that the trial court committed error, we must then determine whether the error is reversible. Tex. R. App. P. 44.2(a). If the error is constitutional, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Id. If the error is not constitutional, we must determine whether it affected appellant s substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Tucker v. State, 57 S.W.3d 229, 237 (Tex. App. Houston [14th Dist.] 2000, pet. ref d).

A. Hearsay Objection

In his first issue, appellant contends that the trial court erred in admitting his written statement into evidence because it was inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). However, an admission by a party opponent is not hearsay. Tex. R. Evid. 801(e)(2). Appellant contends that his statement was not an admission by a party opponent because it was self-serving and, thus, was inadmissible whether offered by him or the State.

Appellant is correct that a defendant s own exculpatory statement is inadmissible hearsay when offered by the defendant. Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. 1981). However, we reject appellant s attempt to extend this rule to a defendant s statement offered by the state. A statement qualifies as an admission by a party opponent if it is offered against the party and is the party s own statement. Tex. R. Evid. 801(e)(2)(A); see Jeffley v. State, 38 S.W.3d 847, 861 (Tex. App. Houston [14th Dist.] 2001, pet ref d). Specifically, a defendant s statement is not considered hearsay when it is offered by the State. Lagaite v. State, 995 S.W.2d 860, 863 (Tex. App. Houston [1st Dist.] 1999, pet ref d). Appellant s own statement in this case clearly qualifies as an admission by a party opponent because it was offered against him by the State.[1]

Moreover, it is irrelevant whether the statement was self-serving as appellant contends. Party admissions, unlike statements against interest, need not be against the interests of the party when made; in order to be admissible, the admission need only be offered as evidence against the party. Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999). Nevertheless, we agree with the State s argument that the statement wasnot self-serving. Appellant s statements that if he did touch the complainant s vagina, he did so while under the influence of crack cocaine and alcohol, or by mistake, could be construed as qualified admissions of the allegations. Because appellant s statement was not hearsay, the trial court did not err in admitting it into evidence.

Appellant s first issue is overruled.

B. Extraneous Offenses

1. Ongoing Sexual Abuse of Complainant

In his second issue, appellant contends that the trial court erred in admitting evidence of appellant s ongoing sexual misconduct with the complainant from 1992 to 2000 because the State did not give timely notice of intent to use this evidence despite a defense request.[2] On March 16, 2001, appellant filed a Motion for Disclosure Pursuant to Rule 404, Rule 609, and Rule 37.07 of Texas Rules of Criminal Evidence and Procedure, in which he requested that the State s notice of intent to introduce extraneous evidence be made at least ten days before trial. Although the trial court granted the motion by signing a printed order form, the court did not fill in a date by which the disclosure had to be made. On May 3, 2001, the State gave notice of its intent to offer evidence that between 1992 and 2000, appellant caused the penetration of the complainant s sexual organ, engaged in sexual contact with the complainant by touching her genitals, and exposed his genitals to the complainant. Trial began on May 7, 2001.

Appellant complains that the State s May 3, 2001 notice was inadequate because it (1) violated the trial court s order that notice be given ten days before trial; (2) misled him about the extraneous offenses the State planned to introduce because in response to a previous motion by appellant, the State filed notice only of its intent to introduce evidence of other sexual misconduct on two specific dates, as well as appellant s criminal history;[3] and (3) was not reasonable because it was given on a Thursday, four days before trial began on a Monday. The State contends that notice was reasonable and appellant waived his complaint because he did not request notice under article 38.37 of the Texas Code of Criminal Procedure.

Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. Tex. R. Evid. 404(b). As an exception, evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon timely request by a defendant, the state gives reasonable notice in advance of trial of intent to introduce such evidence. Tex. R. Evid. 404(b). However, article 38.37 of the Texas Code of Criminal Procedure supercedes Rule 404 in prosecutions for indecency with a child and sexual assault of a child. Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2002); see Hitt v. State, 53 S.W.3d 697, 705 (Tex. App. Austin 2001, pet. ref d); Conrad v. State, 10 S.W.3d 43, 46 (Tex. App. Texarkana 1999, pet. ref d). Article 38.37 provides in pertinent part:

Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

Sec. 3. On timely request by the defendant, the state shall give the defendant notice of the state s intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Criminal Evidence.

Tex. Code Crim. Proc. Ann. art. 38.37, 2, 3.

We agree with the State s contention that it was not required to give notice of its intent to introduce the evidence at issue under article 38.37 because appellant did not request notice under that article. Rather, appellant s request was limited to notice under Texas Rules of Evidence 404 and 609[4] and article 37.07 of the Texas Code of Criminal Procedure.[5] A request for notice under these provisions does not constitute a request for notice under article 38.37. See Hitt, 53 S.W.3d at 705 06 (holding that evidence of defendant s extraneous sexual offenses was admissible under article 38.37 despite lack of notice because defendant requested notice under Rule 404 only). The evidence qualified under article 38.37 as evidence of other crimes, wrongs, or acts used to prove the previous and subsequent relationship between appellant and the complainant. Appellant concedes that this evidence was addressed to the allegation that he repeatedly assaulted the complainant over eight years. Because appellant never requested notice under article 38.37, the evidence was admissible despite the timing of the State s notice.

Appellant s second issue is overruled.

2. Drug and Alcohol Use

In his third and fourth issues, appellant contends that the trial court erred in admitting his statement into evidence because it contains evidence of extraneous offenses, specifically his use of crack cocaine and alcohol. He contends that this evidence was inadmissible because (1) the State did not give proper notice of its intent to use this evidence; and (2) it was not relevant other than to show character conformance. The State argues that it was not required to give notice of its intent to introduce this evidence because it was admissible and relevant as same transaction contextual evidence.

Extraneous evidence is inadmissible if it is not relevant apart from supporting an inference of character conformity. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 386 87. However, it has long been the rule in this state that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum. Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996) (citing Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). [W]here several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony . . . of any one of them cannot be given without showing the others, the evidence is admissible and relevant as same transaction contextual evidence, an exception to Rule 404(b). Id. (citing Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)); see Tex. R. Evid. 404(b). Same transaction contextual evidence is admissible only to the extent that it is necessary to the jury s understanding of the offense. Pondexter, 942 S.W.2d at 584 (citing England v. State, 887 S.W.2d 902, 915 (Tex. Crim. App. 1994)). The court should allow its introduction only when the offense would make little or no sense without also bringing in the same transaction evidence. Id. (citing England, 887 S.W.2d at 915). Further, the requirement that the State give reasonable notice before trial of its intent to offer evidence of other crimes, wrongs, or acts does not apply to same transaction evidence. Tex. R. Evid. 404(b); Brown v. State, 978 S.W.2d 708, 712 (Tex. App. Amarillo 1998, pet. ref d); Hodge v. State, 940 S.W.2d 316, 319 (Tex. App. Eastland 1997, pet. ref d).

In Heiman v. State, 923 S.W.2d 622 (Tex. App. Houston [1st Dist.] 1995, pet. ref d), the court addressed whether a defendant s drug use was admissible as same transaction evidence in his trial for sexual indecency with his daughter. On the occasion of the charged offense, the defendant injected the complainant with cocaine. After she removed her clothing because the cocaine made her overheated, the defendant molested her. The State introduced evidence that the defendant and the complainant used cocaine and smoked marijuana together on other occasions. The complainant testified that when the defendant injected cocaine, he propositioned her sexually, exposed himself to her, and masturbated in her presence. The court held that the evidence of cocaine use at the time of the charged offense was admissible as same transaction contextual evidence, but the evidence of cocaine use on other occasions was not. Id. at 626. The court reasoned that it was not necessary to the jury s understanding of the events in question for the State to introduce evidence of the defendant s drug use on other occasions. Id.; see Jackson v. State, 927 S.W.2d 740, 742 (Tex. App. Texarkana 1996, no pet.) (in defendant s trial for shooting victim at a house where the defendant, the victim, and several others were gathered, evidence that the group was engaged in drug activity at the time was admissible as same transaction contextual evidence); cf. Couret v. State, 792 S.W.2d 106, 108 (Tex. Crim. App. 1990) (holding that defendant s possession of a hypodermic needle when arrested for burglary was inadmissible because there was no indication that the defendant committed the burglary to obtain money to support a drug habit).

Applying the law to this case, we hold that the evidence of appellant s cocaine and alcohol use was admissible and relevant as same transaction contextual evidence. This evidence was related to the offenses at issue and was not admitted only to show character conformity. Appellant himself blended his cocaine and alcohol use with the sexual abuse allegations by stating that if he did commit the sexual abuse, it was while he was under the influence of cocaine and alcohol. Thus, his statement suggests that the cocaine and alcohol use may have been the reason that the sexual abuse occurred. Cf. Macias v. State, 959 S.W.2d 332, 339 (Tex. App. Houston [14th Dist.] 1998, pet. ref d) (explaining that murder defendant s gang involvement was not same transaction evidence because it was not part of the reason for the murder or part of the explanation for why the murder occurred as it did).

Furthermore, appellant s statement regarding his cocaine and alcohol use could be construed as a qualified admission of the sexual abuse allegations. He denies that he ever touched the complainant. However, his statement that if he ever touched her, it was while he was under the influence of cocaine and alcohol casts doubt on his denial. It also contradicts his claim that if he touched her, it was by mistake. Thus, the evidence was relevant and necessary proof of the charged offense. See Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992) (holding that evidence of extraneous offenses that are indivisibly connected to the charged offense and necessary to the State s case in proving the charged offense may be admissible to explain the context of the charged offense).

We recognize that appellant s statement necessarily includes evidence of cocaine and alcohol use on occasions other than the date of the charged offense. He stated that he used cocaine for a year before his statement to the police. Also, he admitted to excessively consuming alcohol. Although the Heiman court held that evidence of drug use on occasions other than the charged offense was not same transaction evidence, this case is distinguishable from Heiman. In Heiman, there was a clear distinction between drug use at the time of the charged offense and drug use on other occasions. In this case, appellant did not segregate his possible cocaine and alcohol use on the occasion in question from his cocaine and alcohol use on other occasions. Instead, his general statement showed that cocaine and alcohol use could have precipitated the offenses occurring on or about November 30, 1999. Thus, his entire statement regarding his cocaine and alcohol use was necessary to the State s proving that appellant committed the offenses and the jury s understanding of the context in which the offenses occurred. Because appellant s statement regarding cocaine and alcohol use was same transaction contextual evidence, the State was not required to give advance notice of its intent to offer the evidence.

Appellant s third and fourth issues are overruled.

C. Complainant s Style of Dress

In his fifth issue, appellant contends that the trial court erred in refusing to admit testimony that the complainant walked around in appellant s presence dressed only in her bra and underwear because this testimony was relevant to the complainant s credibility. On cross-examination by the State, appellant s natural daughter testified that she did not believe the complainant s testimony, and the following exchange occurred:

Q. If I told you that it was a longer period than that, that it had been happening since 92, alleged to have happened since 92, would that change your opinion?

. . . .

A. I wouldn t believe it because she was so affectionate. She would walk around barely

[State]: I object, Your Honor, Nonresponsive.

The Court: Sustained.

Appellant made no argument and provided no basis for the admissibility of the testimony at this point. When the State passed this witness, appellant rested without redirect. The State then rested and closed. Before closing arguments and while the jury was out of the courtroom, appellant s counsel advised the trial judge that he wanted to make a record with regard to something. Appellant s daughter then testified that complainant regularly walked around in appellant s presence dressed only in her bra and underwear. She further testified that while the complainant was dressed this way in appellant s presence, she was open, comfortable, and affectionate. After she testified, appellant s counsel stated that s my proffer. That s the testimony I would elicit in the presence of the jury. The State then argued, that is not evidence of sexual misconduct, evidence of the complainant s demeanor in front of the defendant, therefore inadmissible. [6] According to the record, the trial court ruled that it will be secluded [sic].

Appellant maintains that this testimony that the complainant was comfortable in appellant s presence in minimal clothing was inconsistent with her claims that appellant sexually abused her for years. However, we agree with the State s contention that appellant did not preserve error at trial.

To preserve error, all a party must do is inform the trial judge what he wants, why he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to remedy the complaint. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992); see Tex. R. App. P. 33.1(a);

To preserve error when evidence is excluded, the proponent must make an offer of proof informing the trial court of the substance of the excluded testimony unless the substance was apparent from the context. Tex. R. Evid. 103(a)(2). The proponent must establish admissibility. See Davis v. State, 645 S.W.2d 288, 291 (Tex. Crim. App. 1983). Generally, we cannot consider grounds that should have been called to the trial court s attention, but were not. Id.

Appellant did not offer any grounds for admitting the excluded testimony when he made his offer of proof. He did not suggest to the trial court the relevancy theory of admissibility now raised on appeal. Moreover, he did not object to the State s claim that the testimony was not offered as prior sexual conduct of the complainant or otherwise respond to the State s objection with an alternate basis for admissibility. Therefore, appellant did not meet the requirement that he present his complaint to the trial court with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a)(1)(A).

We recognize that sometimes an otherwise general complaint will preserve error when the specific grounds are apparent from the context in which it occurs. See id. However, this is not one of those instances. Appellant s theory that the proffered testimony was relevant to the complainant s credibility was not apparent from the context. Therefore, we conclude that appellant did not preserve his complaint regarding exclusion of the testimony for appellate review.

Appellant s fifth issue is overruled.

III. Assistance of Counsel

In his sixth issue, appellant contends that he was denied effective assistance of counsel at trial. The standard for testing claims of ineffective assistance of counsel was enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Accordingly, appellant must prove by a preponderance of the evidence that (1) counsel s representation fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687 88; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). To meet this burden, appellant must prove his attorney s representation fell below the standard of prevailing professional norms and there is a reasonable probability that the result of the trial would have been different but for his attorney s deficiency. Strickland, 466 U.S. at 688, 694; Tong, 25 S.W.3d at 712.

Appellant first complains that trial counsel did not object to the following testimony of Detective T.K. Brinson, the police officer who investigated the allegations. While Detective Brinson was explaining his training, he replied affirmatively when the State asked him

At those conferences that you have attended, have they also talked to you about questioning children, uhm, talking with children, determining basically issues with regard to how to tell if a child is telling you the truth or those type of things as well?

Appellant complains this testimony amounted to an inadmissible indirect opinion that the complainant was telling the truth about the sexual abuse. Appellant cites Kirkpatrick v. State, 747 S.W.2d 833 (Tex. App. Dallas 1987, pet. ref d), in which two psychologists testified that their training and experience qualified them to determine whether a child s outcry statement was true and that the victim s abuse was real. The court held that this testimony was inadmissible because an expert witness may not give a direct or indirect opinion that a child sexual abuse complainant is telling the truth. Id. at 836 38. Appellant also cites Miller v. State, 757 S.W.2d 880 (Tex. App. Dallas 1988, pet. ref d), in which the court held that a defendant s trial counsel was ineffective for failing to object when a parent, doctor, counselor, and police officer testified that they believed a child sexual assault victim was telling the truth. Finally, appellant cites Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993), in which the court held that an expert may not give an opinion that a complainant or class of persons to which the complainant belongs is truthful.

Unlike the experts in Kirkpatrick and Miller, Detective Brinson s testimony was not a direct or indirect opinion that the complainant was telling the truth. Rather, he merely responded, yes when asked if he had received training to discern whether a child is telling the truth. The State then continued with questions regarding other areas of his training. The State did not use Detective Brinson s testimony regarding his training as a precursor for eliciting testimony from him regarding the complainant s truthfulness. Cf. Martin v. State, 819 S.W.2d 552, 555 (Tex. App. San Antonio 1991, no pet.) (testimony of a human services representative who interviewed child sex abuse complainant was inadmissible; she testified not only that she used her training to determine whether child sex abuse victims were telling the truth, but also that she believed the complainant was telling the truth). Although Detective Brinson testified about his investigation, he never specifically opined that the complainant was telling the truth. See Wylie v. State, 908 S.W.2d 307, 309 10 (Tex. App. San Antonio 1995, pet. ref d) (trial counsel was not ineffective in failing to object to the testimony of a caseworker and doctor regarding their actions taken to investigate a child s sexual abuse allegations, the procedures used to examine abuse victims and their experience; their testimony was not a direct opinion regarding the child s truthfulness and did not cross the line in an attempt to decide the ultimate issue for the jury). Furthermore, Detective Brinson did not testify that child sex abuse complainants always tell the truth, as prohibited by Yount. Thus, trial counsel was not ineffective by failing to object to Detective Brinson s testimony. See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

Finally, the record is silent on whether the lack of an objection was due to appellant s counsel s trial strategy. Counsel might well have strategized that he would not object to this testimony because he later offered testimony attacking the complainant s truthfulness. See Duhart v. State, 890 S.W.2d 187, 189 (Tex. App. Corpus Christi 1994, no pet.) (no ineffective assistance in trial counsel s failure to object to mother and grandmother s testimony that they believed child sexual abuse complainant; trial counsel s strategy was to attack child s credibility by showing discrepancy between child s family members professing to believe her and their subsequent inaction). There is a strong presumption that a trial counsel s challenged actions might be considered sound trial strategy. Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771 72 (Tex. Crim. App. 1994). Moreover, a claim of ineffective assistance must be firmly supported by the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). Under the facts of this record, we find no basis to set aside this strong presumption.

Nevertheless, even if Detective Brinson s testimony were objectionable, we do not find a reasonable probability that the result of the trial would have been different but for this testimony. See Strickland, 466 U.S. at 694; Tong, 25 S.W.3d at 712. By the time the jury deliberated, appellant had attacked the complainant s credibility by eliciting testimony, as well as arguing, that she was not believable. At that point, the jury had heard testimony from various witnesses sufficient to assess the complainant s credibility. Thus, we cannot conclude there is a reasonable probability that Detective Brinson s statement affected the outcome of the trial.

Appellant also complains of trial counsel s failure to object to the following portion of the State s closing argument:

[W]hen she told them to the doctors, when she told them to Children s Assessment Center and myself. These are all people that are trained.

You heard Detective Brinson talked about he s had numerous sources, how he s been in Juvenile Section to talk to juveniles to see if they re telling the truth or not. We had the head of the pediatric division, Dr. McNeese up here to talk to you. She s talked to many people.

The other reason why you should believe [the complainant] is that her brother believed [her] as well.

Appellant contends that the State used its improper questioning of Detective Brinson as a preface for improper closing argument. However, appellant attacked the credibility of the complainant. Therefore, the State s argument was a proper response. See Wylie, 908 S.W.2d at 310 (because the defendant attacked the child sexual assault complainant s credibility, the State s jury argument attempting to uphold the child s credibility and inferring that the child had convinced a number of witnesses was a proper response to the defense and a reasonable deduction from the evidence). Accordingly, we find that trial counsel did not render ineffective assistance by failing to object to the State s argument.

Appellant s sixth issue is overruled, and the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed July 3, 2002.

Panel consists of Justices Yates, Seymore and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] The State used the statement to attempt to discredit appellant s witnesses. For example, the State asked appellant s nephew, would it change your opinion of the defendant, Nathan Morgan, if you knew that he had stated, well, if I touched [complainant s] vagina then I did it under the influence of crack cocaine or alcohol? The nephew responded, To a certain degree, yes and well, I would be very disappointed in him, yes. The State posed a substantially similar question to all of appellant s witnesses. The State also used appellant s statement that he clipped complainant s toenails and rubbed her legs and back to question appellant s witnesses, implying that such actions towards a teenaged stepdaughter are not normal. In closing argument, the State argued, This is a creepy statement. It also argued that appellant s witnesses changed their opinions of appellant after the contents of the statement were disclosed to them. It further questioned how appellant would know to mention specifically both the inside and outside of complainant s vagina in his statement unless he had touched these areas.

[2] Appellant was specifically charged with indecency with a child on or about November 30, 1999 and sexual assault of a child on or about November 30, 1999.

[3] On October 5, 2000, appellant filed a Motion for Discovery and Inspection and Notice Re: Tex. R. Evid. 404(B) and 609 (F). On January 3, 2001, the State filed a Combined Texas Rules of Criminal Evidence 404 and 609 Notice and 37.07(G) Notice stating its intent to introduce appellant s 1988 DWI and 1976 burglary of a building convictions and evidence that appellant exposed his genitals to complainant on May 15, 1999 and engaged in sexual contact with complainant by touching her genitals on January 1, 2000.

[4] Rule 609 permits evidence of certain crimes to impeach a witness. Tex. R. Evid. 609. A party must give notice of intent to introduce such evidence if timely request is made by the other party. Tex. R. Evid. 609(f).

[5] Article 37.07 permits certain evidence of a defendant s character and extraneous acts at the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2002). If timely requested, the state must give advance notice of intent to introduce such evidence. Id. 3(g).

[6] The State s argument is unclear, but it appears to be an argument that the testimony is inadmissible as evidence of prior sexual behavior of the complainant.