Billy Don Smith v. The State of Texas--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00126-CR

Billy Don Smith,

Appellant

v.

The State of Texas,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2006-1465-C2

MEMORANDUM Opinion

A jury convicted Billy Don Smith of one count of aggravated sexual assault and three counts of indecency with a child. The court sentenced him to fifteen years imprisonment on each count. Smith contends in his sole issue that he received ineffective assistance of counsel. We will affirm.

The complainant, who was eighteen at the time of trial, testified that she was spending the night at Smith s home on the occasion in question. Smith is her uncle. He awakened her in the middle of the night and led her to a nearby shed where he sexually assaulted her and committed the other acts alleged in the indictment.

Smith complains that his trial counsel was ineffective because counsel failed to object to the hearsay testimony of three witnesses to whom the complainant had told details about what Smith had done to her.[1]

The first of these witnesses was a leader in the complainant s youth group at church. The youth group had gone to a summer camp in Colorado. This witness testified without objection that the complainant had confided in a small group setting at camp that she had been raped. On cross-examination, Smith s counsel elicited from the witness that the complainant had said that the rapist was Billy, a friend of their family. Counsel further had her testify that she understood that the complainant had been raped in a bedroom. On redirect, the witness testified without objection that she thought the complainant had been sexually abused, thus implicitly vouching for the complainant s credibility.

The next witness about whom Smith complains is the complainant s mother. She testified without objection that her daughter told her after returning from youth camp that Billy had done something to her. She understood it to be sexual in nature.

The third witness is the sheriff s deputy who conducted the investigation. The deputy testified, similar to the complainant, that she reported to him that Smith had awakened her and taken her to a shed in the early morning hours and sexually assaulted her. He testified that he found the complainant to be very, very believable.

Smith argues that counsel s failure to object to this testimony constitutes ineffective assistance because there was no conceivable basis for admission of the testimony and it only served to bolster the complainant s testimony which was not supported by any physical evidence.

The State responds that counsel had a legitimate strategy for not objecting to this testimony because counsel made note of the discrepancies and inconsistencies in the various witnesses testimony during closing argument in an effort to undermine the credibility of the complainant and convince the jury that the State had failed to prove its case beyond a reasonable doubt.

We begin with a strong presumption that counsel provided reasonably professional assistance, and Smith bears the burden of overcoming this presumption. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Curry v. State, 222 S.W.3d 745, 754 (Tex. App. Waco 2007, pet. ref d). If nothing in the record reveals the reason for the act or omission which is the basis of an ineffective assistance complaint, we may not speculate on that reason. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Curry, 222 S.W.3d at 754; Hajjar v. State, 176 S.W.3d 554, 567 (Tex. App. Houston [1st Dist.] 2004, pet. ref d).

Here, Smith did not file a motion for new trial. Thus, we have no record providing his trial counsel s rationale for failing to object to this testimony. Without a record elucidating the reasons for trial counsel s failure to object, Smith has failed to overcome the strong presumption that counsel provided reasonably professional assistance. See Andrews, 159 S.W.3d at 101; Jones v. State, 170 S.W.3d 772, 776-77 (Tex. App. Waco 2005, pet. ref d); Hajjar, 176 S.W.3d at 567.

Accordingly, we overrule Smith s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed May 28, 2008

Do not publish

[CR25]

[1] Because the complainant was thirteen years old at the time of the offenses, none of these witnesses qualified as an outcry witness. See Tex. Code Crim. Proc. Ann. art. 38.072, 1 (Vernon 2005) (outcry statute applies to prosecution of offense committed against a child 12 years of age or younger ).