## In the Court of Appeals S econd Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 1 9

- 00349

- CR

_______ ________ ____________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas Trial Court N o. 1609793R

Before Birdwell, Bassel , and Walker, JJ. M emorandum Opinion by Justice Walker 

### R OSS 

### T HOMAS 

### B RANTLEY 

### III , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury fou nd Appellant Ross Thomas B rantley III guilty of ten counts of aggravated sexual assault of a child and six counts of indecency with a c hild by contact and assessed his punishment at imprisonmen t in the penitentiary for life and a $10,000 fine for each o f the ten aggravated

- sexual

- ass a u lt

- o f

- a

- child c ounts and for twenty years and a $10,000 fine for each of the six inde ce ncy

- with

- a

- child

- b y
- contac t

counts. See Tex. Penal Code Ann. § § 22.11, 22 .0 2 1

. I n accordance with the jury
verdicts , t he trial court sentenced Brantley , but it further ordered the life sente nce in count two to run consecutively to the li fe sentence in co unt one ; it ordere d all the remaining sentences to run concurren tly w ith count one

. See id

. § 3 .03(b)(2) (A). Brantley appealed. Becau se Brantley has not shown that his tri al attorney ’ s perfo rmance was deficient, we overrule his sole issue alleging ineffective assistance of
counsel and affirm the tri al court ’ s judgment.

I
. B RANTLEY ’ S COMPLAINT
I n one point, Brantley argues that h is trial counsel rendered in effective
assistance

. Specifically, he complains about tri al coun se l ’s not objec ting to the following two exchange s between the prosecutor and Detective W.K. (Bill) Maddox: [ Prosecutor : ] O kay. After interviewing [ the complainant ] , did you have any doubt in you r mind that she was tellin g the truth about what she had told you? [ Maddox : ] I believed her and be lieved she w as telli ng the truth.

. . . .3 [ Prosecutor : ] Okay. At the conclusion of your investigation, after you had spoken to [ the complai nan t] , gotten this sample, ta lked to [ the complain ant ’ s mother

] , did you . . . see any reason that [ the com plainant ] had, an y motiv e for her to lie about th ese acts of sexual abuse? [ Maddox : ] No. [ Prosecutor : ] Is tha t something that you ’ re l ooking for in your in vesti gation? [ Maddox : ] Yes. It is something that we will take into account. We have cases where there might be [a ] divorce or a custody battle go ing
on. We might have cases where there have been other dispu tes between the victim a n d the suspect. No one fac tor is going to make me make a decision, yes or no, on the case, but I do take into acc ount everything that I c a n learn about

. . . the relatio nship. In this case, I didn’t see any motive for her to make the statement outside of it be i ng a true statement.
B rantley argues that trial counsel should have object ed because Maddox ’ s responses were imprope r opinion te s timony under Texas R u les of Evide nce 701 or
70 2. Tex. R . E vid. 701 ( “ Opinion Testimo ny b y Lay Witness ” ); 702 ( “ Test imo ny by Expert Witness ” ). 1 Whether through an expert or a lay witness, vouching for another
wi tness ’ s credibility is irrelevant and ina dm i ssible because it goes beyond assisting the

1 Brantle y a lso cites Texas Rule of Evide nce 613(c) , wh ich prohi bits using a witn ess ’ s prior consistent statement to bolster the witness ’ s credibility ; the rule has an exception

— a prior consistent statemen t is ad missible to rebut an express or impli ed char g e of rec ent fabrication. See Trejo v. S tate , 594 S.W. 3d 790, 8 02 (Tex. A pp.

— Hou ston [14th Dist.] 2019, no pet.)

. The complained

- of testimony might bolster the complainant ’ s credib i lity (b ecause Maddox stated that he believed her) , but it d oes not bolste r her credibility by using her p rior consistent sta tement s . The co m plained

- of test imony does not identify any of the complainant ’ s prior statements ; we thus conclud e that Rule 613(c ) does not apply.4

trier of fact i n understanding the evidence o r determining a fact in iss ue
— it decides an issue for the jury. See Elmawla v. State , No. 02

- 19

- 00279

- CR, 20 21 W L 1421437, at

* 3 (Tex. App.

— Fort Worth A pr. 15, 202 1, pet. ref ’ d ) (mem. op., not designated for publication). 2 B rantley complains that Maddox ’ s testimony improperly vouc hed for the complainant ’ s credibility an d that tr ial co unsel rendered ineffec tive assistance
because he did not object.

I I. S TANDARD OF R E V IEW
T he United States Constitution guarantees a criminal de fendant the effective
assistance of counsel. U.S. Co nst. ame n d. VI ; Ex parte Scott , 541 S.W.3d 104, 114 (Tex. Crim. App. 2017)

. To establish ineffective assistance, an appellant must prove by a preponderan ce of the evidence that his counsel’s representat ion was deficient and
that the d efi ciency prejudiced his defe n se. Strickland v. Washington , 46 6 U.S. 668, 687 , 104 S. Ct. 2052, 2064 (1984); Nava v. State , 415 S.W.3d 289, 307 (Tex. Crim. App.
2 0 13). The record must a ffirmatively show that the claim has merit. Thompson v. Sta te , 9 S.W.3d 808, 813 (Tex. Cri m. App. 1999).
I n evaluating c ounsel’s effectivenes s under the deficient

- performance prong, we review the totality of the representation and t he particular circums ta nces of the case to determine whether counsel provided reaso nable assistance under all the
cir cumstances and prevailing p rofessional norms at the time of the alleged error. See

2 B ran tley ’ s appellate cou nsel was al so Elm awl a ’ s appella t e counsel in El mawla

. Elmawla issued about a year after counse l filed B rantley ’ s brief.5

Strickland , 466 U.S. at 688

– 89 , 104 S. Ct . at 2065 ; Na v a , 415 S.W.3d at 307 . Our
review of coun se l’s representation is highly deferential, and we indulge a s trong presumption that counsel’ s c onduct was not deficient. Nava , 415 S.W.3d at 307

– 08 ; Thompson , 9 S.W.3d at 813

. A n appellate court may not in fer ine f fective assistance simply from an unclear

r ecord or a record that does not show why counsel failed to d o something. Menefield v.
Stat e , 363 S.W.3d 591, 593 (Tex

. C rim. App. 2012); Mata v. State , 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial c ounsel “ should ordinarily be afforded an opportun it y to explain his actions before being denounced as ineffecti ve.” Menefield , 363 S.W.3d at
593 . If trial counsel did no t have that opportunity, we should not conclude that counsel performed deficiently un less th e challenged conduct was “so outrageous th at no competent attorney would have engaged in it.” Nava , 415 S.W.3d at 308. Direct appeal is usually inadequate for r ai s ing an ineffective

- assistance

- of

- counsel claim because the record generally does not show c o unsel’s reasons for any alleged deficient
p erformance. See Menefield , 363 S.W.3d at 592

– 93; Thompson , 9 S.W.3d at 813

– 14.
I II. D ISCUSSIO N
D e fense counsel ’ s failure t o object to certain improper evidence does not by
itself i ndicat e ineffective assistan c e of counsel unless the record clearly conf i rms that
no reasonable trial counsel could have made such a d ecision. See Long v. State , 502 S .W.2d 139, 141 (Tex. Crim. Ap p
. 1973) (op. on reh ’ g) ; M oore v. State , No. 02

- 19

- 00371

- CR, 2021 WL 1569157, at *5 (Tex

. App.

— For t Worth Apr. 22, 2021, no pet. )6

( m em. op., not designated for public ation). Brantley contends that trial counsel ’ s conduct falls with in this exception. We disagree.
I n itially , we note that although both appellate counsel and Brantley ( pro se )
f i led motions for new trial, neither alleged ineffective assistance o f counsel , and
neither motion res ul t ed in a hearing at wh ich evidence was presen t ed

. Thus, the
record is silent regar ding counsel ’ s explanation for not objecting

. I f couns el ’ s reasons fo r his conduct do not appear in the re cord an d i f there is at least the possibility t hat
the conduct could have be e n a legitimate trial strategy, we defer to counsel ’ s decisions and deny relief on an inef fective

- assistance claim on direct appea l. Ortiz v. St a te , 93 S.W.3d 79, 88

– 89 (Tex. Crim. App. 20 02) ; M oore , 2021 WL 1569157, at *5

. Tu rni ng to the re cord , we conc l u de t hat there is at least the possibility that counsel ’ s conduct could have been a legitimate trial strategy

. T rial counsel was not obl ivious t o appellate counsel ’ s con cerns. During fina l

a rgument, trial counsel repeatedly emph a sized that it was the jury ’ s responsibility , not the witness es ’ , to decide whether to believe the co mplainant:
L adies and gentlemen, we all want to thank y ou for your p ar t icipation in this. You make our sy stem wor k. Without you, you know, I d o n ’ t know

. . . what we ’ d d o , but you are necessary, and we do appreciate your attention and the ti me and effort you put in on this.
W e heard from a variet y of witnesses, and some d i screpancies came up here. And ther e seemed to be

. . . kind of an overrid ing theme from their w

itne sses . . . , [ “ D] on ’ t worry about it, don ’ t pay any attention to this, tha t ’ s not a concern. [ ” ] Well, you ’ re the jury. You look at all the evidence. Yo u d ecide if it ’ s a concern or not. Y o u decide if it ’ s an issue.7

You decide what the evidence is, not the witness up there telling you their opinion. You decide.
W e heard from Ms. Dula and Detective Maddox, again, about the age. What did they tell you? W ell, let ’ s see. We had evidence t h at, well , maybe she was f

ive or six, ma ybe 11 or 12. And then th ey b oth had to say, [ “ O] h, well, don ’ t worry about this. You know, children th is, children that. [ ” ] Detective Maddox interview e d a grown woman. [ 3 ] He di d n ’ t interview a child. You decide if th ose discrepancies are an issue and not t he witness.
W e hear d from

. . . C onnie Housley, a nurse. We talked about different tests that were done. An d

. . . she basically said, “ [W] ell, don ’ t worry about these co ntradi c tory test results. [ ” ] One was posi tive. O ne was negative. You know, jus t

-- jus t forget about tha t.
W ell, ladies and gentlemen, you decide i f it ’ s an issue. You decide if it ’ s a concern or not. The State has t h e burden to prove their case to you b e yond a reasonable doubt. They don ’ t have t o prove their case t o their witnesses. They h ave to prove it to you.
W e also heard that

. . . a child can contract herpes during childbirth. It can be passed to the infant

. You know, the State has t he b urden o f proof to bring you all the evidence. The y have the burde n, a nd it never shifts to my c lient ever. [ The complainant] , she finally recalled bei ng asked in 2000

-- I believe November of 2007 and March of 2013, she wa s asked by the trained CPS w orke rs

-- w e heard how they ’ re trai ned t o do these sex ual abus e exams out in the field

-- asked thos e questions. She said, [ “ N] o. [ ” ] There was no outcry whatsoe ver. And you

-- again, you hear from their witnesses saying, [ “ D] o n ’ t worry about that, don ’ t wor ry ab o u t that. [ ” ] Well, ladies and gentlemen, t ha t ’ s for you to decid e. T hat is your job here to decide the evidence, not the witnesses ’

.

3 The complain ant was under the age of fou rteen when the abuse occurred and
m ade a delayed outcry when she was fifteen years old

. S he was seventeen years old
w hen Ma d d ox in terview ed her and t wenty years old when she testified

.8 W e heard that [the complainant] t alked to the district attorney ’ s office, I believe , [to] about six different prose cutors , appar ently about 15 dif ferent times. Is t hat an issue? That ’ s in evidence

. It ’ s som et hing for you to consider how much sort of influence, how much sort of coaching coul d possibly take place with that much contact. You decide her credibility.
Y ou d o n ’ t listen to a lady that looks at the inte rview and says, [ “ W] ell, I believe her. [ ” ] That ’ s for you to decide when you saw [the complainant] o n t h e . . . stand. T hat ’ s your job.
L ad ies and gentlemen, th e State has the burden of proof to prov e ev ery el e ment in all 1 6 counts here, a nd they did no t meet th at burd en. Thank y ou. T hus, trial counsel dealt with the issue about which appellate co un sel complains , but trial counsel went ab out it in a d ifferent manner

— he correctly argued
that it was the ju r y ’ s (

not the wit nesses ’ ) c all whether to bel ie ve th e complainan t
. See
Elmawla , 20 21 W L 1421437, at * 3

. Counsel wove Maddox ’ s belief into his argument

. See Long , 502 S.W.2d at 141 ( “ Certainly a va l id objection could have been made, but

t he failure to objec t m ay well have be e n a part of trial strat eg y, si nce couns el argued to the jury that such informer was perhaps the guilty party and was o nly trying to shield himself by giving such information

. . . . ” ). W e conclude that the record s hows a plausible reaso n f

or trial counsel ’ s not object ing to th e c ompla ined

- of test imony. See
Blackwel l v. State , 193 S.W.3d 1, 22 (Tex . App.

— Houston [1st Dist.] 2006, pet. ref ’ d) (holding that absent direct evidence i n the record to show why counsel did not object

to co mplain e d

- of testimony, co unsel ’ s reasons for his a ction s are presum ed plausible).9

U ltim ately though, w e may not speculate regard ing why trial counsel acted as he did and must presume that a reasonable t r ial strategy support ed h is conduct

. See
Bone v. Stat

e , 77 S .W .3d 828, 8 35 (Tex. Crim. App. 2002) (s t at ing that retrospe ctive specul ation was not a basis on which to bu ild a c laim of ineffective assistance of
counsel ); Blackwel l , 193 S.W.3d at 21

– 22 (asse r ting that courts will not spec ulate to
fin d trial cou nsel i n ef

fec tive when the record is sile nt on co u n sel ’ s reason ing); see also
Scheanette v. State , 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (presuming that a

reasona ble trial strategy supported defense coun sel ’ s act ions because the court coul d only specul ate as to why counsel acted or failed t o act). Wi thout more, we ho ld that Brantley has not met h is burden of showing by a preponderance of the evidence that
h is trial counsel ’ s representation fell belo w the st a ndard of prevailing professional

norms
. See Strick l

an d , 466 U.S. at 688 , 104 S. Ct. at 2065

. Because he h as not s hown deficient pe rformance, he necessarily cannot show prejudice caused by any deficiency

. See Nava , 415 S.W.3d at 307

. W e overrule Brantley ’ s point.

I V
. C ONCLUSION
H aving overruled Brantle y ’ s sole point, we a ffi rm the trial cou rt ’ s judgment s for

ten co un ts of aggravated se xual as sault of a child and six counts of indecency with a child by contact

.10 /s/ Brian Walker
B rian Walke r J ustice
D o Not Publish Tex. R. App. P. 47.2(b)
Delivered : August 1 9, 2021