D.P. and T.C. are half-br others. Appe llant is D.P.’s st ep fa t her, not his natura l father
. 1 D.P.’s mother m arr ied appellant when D.P. was about fiftee n months old, and during their marr iag e, T.C. was born. Their m other commit ted s uicide when D.P. was three or four, a nd both boy s stay ed in appellant’s c are . 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00382- CR NO. 03-04-00383- CR NO. 03-04-00384- CR NO. 03-04-00385- CR NO. 03-04-00386- CR NO. 03-04-00387- CR

Ja m e s Le e Ci nnam on, App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF CONCH O CO UNTY, 119TH JUDICIAL DISTRICT NOS . 1456, 1457, 14 58, 145 9, 1460 & 1461 , HO NORAB LE BEN WO ODW ARD, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N Ap p ell ant J ames L ee Cinnamon a nd his wife, Donna

Cinnamon, married in 1996. At the tim e of

the ir marr ia g e , a

pp e lla nt h a d tw o s on s, D. P., bo rn i n May 19 91, a nd T. C., bo rn

in J anuar y 1993. Donna ha d two sons, J .R., born in Dece mber 1991, a nd J .S., born in Aug ust 1993, 1

a nd on e da ug hte r, A. C., bo rn

in S e pte mbe r 1 99 5. Ap pe lla nt a do pte d A .C. a nd

wa s st e pf a the r t o J.R.Maho ne y wa s th e the ra

pis t f or a ll f our b oy s. 2 Stephen and L isa S. are the foster pa rents with whom the four

boy s were place d for se vera l 3 months. D.P. and T.C. wer e placed there soon after their r emoval fr om the Cinnamons’ car e, and J .S. and J .R. were place d there later. 2 a n d J
. S
. D u r i n g t h e m a r

r i a g e , t h e C i n n a m o n s h a d a n o t h e r d a

u g h t e r , P
. C
. , b o r

n i n A u g u s t 1 9 9 7
. In 1998, all four of

the boy s were sexually

abused by

their fifte en-y ear -old uncle Jonathan, who wa s convicted a

nd imprisoned for that c rime. The Cinnamons lived in L ubbock, Te x as, until late 1999, wh e n th e y

mov e d to Ed e n, Te xas. I n May 2001, the Depa

rtment of Protec tive and Reg ulatory Service s rec eived a

repor t that th e c hil dr e n w e re be ingne g le c te d. Th e De pa rtme nt r e mov e d th e c hil dr e n f ro m th e Cin namon s’ home, place d them in foster c are , and sent them to counse ling. In J uly 2001, A.C. and P.C. made outcries of

sexual abuse to their counse lor, J an De nson. I n ear ly Aug ust 2001, D.P. and T.C. made
o u tcries of

sexual abuse to their thera pist, Robert Mahoney
. I n late August 2001, J .R. made an 2 outcry to his foster fathe r, Stephen S., and J .S. made his outc ry to L y nn McF adden, a

Depa rtment 3 inv e sti g a tor , in

Se pte mbe r 2 00 1. Th e a

bu se wa s all e g e d to ha

ve ha pp e ne d in mid -2 00 0, wh e n P. C.
w a s a b o u t th r e e , A
. C. w a s a

b o u t f iv e , J. S. a n d T
. C. w e r e a b o u t s e v e n , a n d J. R. a n d D .P. were betwee n eig ht and nine. P.C. and A.C. wer e int er v i ewed in J uly 2001 by Melody J eter , lead interviewe r for a children’s advocac y cente r. McF adden inter

viewed D .P. and T.C. in August 2001 and J.S . and J.R . in September 2001.

Ap pe lla nt w a s ind ic te d in

six se pa rate c a us e nu mbe rs fo r a g g ra

vate d s e xua l a ssa

ult of the six children. See Te x. Pe n. Cod e Ann. § 2 2. 02 1( a )( 1) (B ) ( Wes t Su pp . 2 00 5) . T ri a l w a s h e ld in 200 4, a nd the jur

y c on vic te d ap pe lla

nt of e ig hte e n co un ts of a g g ra vate d s e xua l a

bu se a s f oll ow s:3

• Causing his mouth to contac t A .C.’s sexual orga n, causingher mouth to contac t his anus and sexual org an, using his finge r to pene trate he r sex u al org an, and penetr ating her mouth with his se x ual org an (tria l court ca se number 1456, our cause number 03-04- 00382-CR).

• Ca us inghis mouth t o c on ta c t P. C.’ s se xua l or g a n a nd a nu s, cau sin g he r m ou th to contact his anus a

nd sexual orga

n, and using his finge r to pene trate her se x ual org an (tria l court ca se number 1457, our cause number 03-04- 00383-CR).

• Penetrating D.P.’s mouth and a nus with his penis (trial court case number 1459, our ca use number 03- 04-00385-CR).

• Penetrating J.R.’s mout h and anus with his penis (trial court ca se number 1461, our ca use number 03- 04-00387-CR).

• Penetrating T.C.’s mouth and a nus with his penis (trial court case number 1460, our ca use number 03- 04-00386-CR).

• Penetrating J.S .’s mouth and anus with hi s penis (trial cour t case number 1458, our ca use number 03- 04-00384-CR). The jury sentenc ed appe llant to seventy -five y ear s’ imprisonment. I n his f irst six iss ues, appe llant
c on te nd s th a t th e e vid e nc e is l e g a lly a nd fa c tua lly ins uf fi c ie nt t o s up po rt

hi s con vi ctio ns . In h is
se ve nth iss ue , he a rgue s tha t he re c e ive d in e ff e c tiv e a ssi sta

nc e of c ouns e l be c a

us e his a tto rn e y

did not object during the g uilt/i nnocenc e phase of the trial to e vidence of extraneous off enses c ommitt ed by a pp e lla nt. As dis c us se d b e low , w e re ve rs e the c on vic tio ns in c ount f ive in t ri a l c ourt c a se
nu mbe rs 14 56 a nd 14 57 a nd c ount on e in c a se nu mbe rs 14 59 a nd 14 60 . We a ff ir m th e jud g me nts of c on vic tio n a s to a ll o the r c ou nts in a ll s ix ca

us e s.
Stand ard of Review We r e vie w a

tr ia l c ourt ’s ru lin g on

a mot ion fo r a dir e c te d verdi ct un de r t

he same standards use d to reviewthe suffic iency of t h e evide nce. Ra bb an i v . S tat e , 847 S.W .2d 555, 5564

(T e x. Cr im. Ap p. 19 92 ); Ro dr igu e z v . S tat e , 939 S.W .2d 211, 218 (Tex. App.—Austin 1997, no pet.) (o p. on re h’ g ). I n e va luatin g the le g a l su ff ic ie nc y , w e vie w t

he e vid e nc e in the lig ht m os t f a vo ra ble to the verdic t and ask whether any rational trier of fac t c ould ha ve found the essential ele ments of the offe nse beyond a re asonable doubt. J oh ns on v . S

tat e , 23 S.W .3d 1, 7 (Tex. Crim. App. 2000). I n revie wing the fa ctual suff iciency , we v i ew the evidence in a neutra l light and will set aside a verdic t only

if the suppor t i ng evidenc e is so weak that the ver dict is clear ly wrongor the c ontrary evidenc e is so strong that jury could not h ave f

ound all the eleme nts of the cr ime bey ond a
rea sonable doubt. Pr ibl e v . S tat e , 17 5 S.W. 3d

72 4, 73 1 ( Te x. Cr im. Ap p. 20 05 ). A v e rd ic t is c le a rl y
wr on g a nd

un jus t if the “ jur y ’s fi nd in g is ‘ manif

e stl y un jus t,’ ‘s ho c ks the c on sc ie nc e ,’ or ‘c le a rl y demonstrates bia s.’” Id
. (q u o t i n g Sa nte lla n v . S tat e , 939 S.W .2d 155, 164 (Tex. Crim. App. 1997)). Th e jur y , a s tr ie r o f fa c t, is “ the e xclu siv e jud g e of the c re dib ili ty of wi tne sse s and

of the we ig ht t o be g iven their testim ony . L ikewise, re conciliation of c onflicts in the evidenc e is within the exclusive province of the jury .” J on es v . S tat e , 944 S .W.2d 642, 647 (Tex. C rim. App. 1996) (inter nal
c itatio ns omi tte d) ; se e Ba rn es v . S tat e , 62 S.W .3d 288, 298 (Tex. App.—Austin 2001, pet. ref ’d). The finde r of f

act may acc ept or re

ject all or a

ny of t he evidence presente d by either side, may draw
rea sonable infe renc es fr om the evidence, and must reconc ile any evidentiar

y conflicts. Barnes , 62 S.W .3d at 298. We deter mine the suffic iency

of the e vidence by

viewing the cumulative e ffe ct of all the evidence, not ea ch fa ct in isolation. Id. a t 29 7. Any inc on sis te nc ie s in

the e vid e nc e sh ou ld be resolved i n favor of the ve rdict. Mo re no v . S tat e , 755 S.W .2d 866, 867 (Tex. Crim. App. 1988). This standard of

revie w is the same f

or both direc t a

nd circ umstantial evidence
. Barnes , 62 S.W .3d at 297.5 Summ ary of the Evid ence Be cause appellant c halleng es the leg al and f ac tual sufficie ncy

of the e vidence
s u p p o rt i n g a l l o f

t h e c o u n t s i n a l l s i x c a

u s e s , a f a i r l y d e t a i l e d r e c i t a t i o n o f t h e e v i d e n c e i s n e c e s s a r

y. J an De nson was the g irls’ thera pist and was the wit ness who heard the f irst outcries of abuse from any of t he children. She testified t hat from the beg inning, the g irls put dolls toge ther in sex ual positions and talked about how the dolls “ are kissing ea ch other all over.” Denson wor

ked with the g irls over time to observe repe titive patterns in how t he girls pl ay ed with the dol ls or what the y sa id. I n July 20 01 , De ns on ha d se pa rate se ssi on s wi th e a c h g ir l. Duri ng he r se ssi on , A .C. tol d De ns on a bo ut a n inc ide nt wh e n he r pa

re nts a nd br oth e rs we re in t he ro om s he sh a re d w ithP.C. A. C. said that ever

y one was naked and t hat appellant and Donna Cinnamon wer e “on top of eac h other on the floor.” A.C. said that J .R. was on top of her, J .S. wa s on top of P.C., and D.P. a nd T.C. were “standing front to bac k, with their g enitals touching .” A.C. told Denson that her pare nts told t he children w hat to do and to kiss eac h other all over. A .C. also describe d another incident in which
a pp e lla nt c a me int o th e g ir ls’ ro om an d took the ir c lot he s o ff . App e lla nt k iss e d A .C. on

he r g e nit a ls and her anus and “ did the same thing to P.C .” while A.C. watched. Appellant then told “both of the g ir ls t o k iss him ” on

his g e nit a ls. A. C. sh ow e d D e ns on “ the lit tle g ir l do ll’ s . . . mouth b e inga t hi s penis. And she said that she and [P .C.] g ot to laug hing about it a nd said: Kiss Daddy ’s weine r. And the n s he tur

ne d o ve r the ma le do ll tha t she us e d as da dd y a nd sa id that dad dy sa id t o a lso kis s h im there , ref err ing to what would have be en his anus.” A.C. told Denson that she and P.C. kissed appellant on his penis and his a nus. Finally , A.C. told Denson about a third incide nt when she a nd the oth e r c hil dr e n w e re in t he ir pa re nts ’ b e dr oo m, n a ke d a

nd on the ir pa re nts ’ b e d. A.C . a g a in6

de sc ri be d h e r p a re nts te lli ngthe c hil dr e n wh a t to d o to e a c h o the r, a nd sh e sa id t hat he r m oth e r “ tol d them to kiss dad all over.”

After sp e a k in g to A
. C. , D e n s o n

im mediately spoke to P.C., who told Denson that “she had see n her mo m an d daddy kiss each othe r down ther e and a ll of the boy s had kissed her down the re a nd he r ma ma a nd da dd y ha d both kis se d he r dow n the re .” P.C. “ did n’ t g o in to a s mu c h d e ta il
a s [A .C. ],” bu t sh e ta lke d a bo ut he r pa

re nts be ing nake d a nd on

top of e a c h o the r a

nd sa id t hat J.S.

“ wo uld be on top of he r” a nd that J.R. wo uld g e t on top of A. C. P.C. tol d De ns on that he r p a re nts tol d h e r t o k iss the ir

g e nitals and

sh e la ug he d a nd sa id, “ Som e tim e s me a nd [A. C.] w ou ld k iss Daddy ’s weine r.” A fter the ir initial outcries, the g irls told Denson that “Da ddy would g et us sexing and we could see it on the computer,” and A.C. dre w a pictur e of the hous e s h o wi n g wh er e the be dr oo ms a

nd the c omp ute r w e re . D e ns on sa id t hat th e g ir ls s tay e d c on sis te nt w iththe ir ou tc ri e s. Duri nga pla y -d a te be tw e e n th e g ir ls a nd the bo y s, De ns on

a nd the bo y s’ the ra

pis t watche d the childre n g o into a n enclose d play

house to “ play Mom a

nd Daddy .” The children showe d
ve ry se xua lize d be havio r tow a rd e a c h oth e r, a nd P.C. wa s p a rt ic ula

rl y a g g re ssi ve tow a rd

the bo y s. Th e c hil dr e n u se d th e te rm “ se xing ,” wh ic h the g ir ls sa id wa s “ kis sin g e a c h oth e r a ll o ve r, ” bu t T .C. said was “ putting y our middle in someone’s butt.” A.C. see med embar rass ed t o t alk wit h her brothers pr esent, but she showe d with the dolls how “they had laid down side- by -side.” D .P. once
c or re c te d J.R. , s a y ing , “ No body had th eir c lot he s o n a nd we we re a ll d oin g it. ” J.S. b e c a me frustrated and put the dolls on top of ea ch other and said, “ This is the way that it was.” Robert Mahoney , the boy s’ thera pist, testified that in early

to mid-Aug ust 2001, after he le a rn e d o f t

he g ir ls’ ou tc ri e s, he sp ok e to D .P. a nd T. C. i n s e pa

rate se ssi on s. Whe n M a ho ne y tol d7

D.P. that his sisters had said “that there are some other things that a re g oing on in the home ,” D.P.’s
e y e s wid e ne d, he wa s quie t for a c ou ple min ute s, a nd the n “ he sta

rt e d s ha ri ngthat . . . th e re wa s a lot of sexual acting- out goingon betwee n the siblings. . . . And then he later r evea led that he a nd the other boy s wer e being sexually abused by ” appellant. D.P. told Mahoney that the ab u s e was throug h “[o] ral a

nd anal se x .” Mahone y

testified that he spoke to D .P. f or an hour

to an hour a

nd one-ha lf to g ive D.P. “seve ral c hance s to . . . back out of the story if—if i t wa s n ’t t rue.” He sa id, “That’s why

we kind of se parated, y ou kno w, gi rl s an d the boy s, to make sure that they wer en’t g etting tog ether

and making up, y ou know, stories and c ollaborating .” Mahoney interviewe d T.C. ne x t. He also told T.C. that the g irls had said there wer e other thing s happe n i n g i n the home, and T .C. got ve ry quiet and then sa id that there w as “se x ual
a c tin g -o ut a

mon g a ll the sib lin g s and that the re wa s sexua l abu se ” in the ho me . M a ho ne y g a ve T. C. the same oppor

tunity to back out of his story , but T
. C
. m ad e t h e same a lleg ations as D.P., that
a p p e l l a n th a d

a b u s e d h i m t h r o u g h o r a l a n d a n a l s e x . M a h o n e y d i d n o ts e e a n y s i g n s t h a tt h e b o ys had talked a

bout their alleg ations befor e telling Mahoney what had ha

ppened. Maho ne y sa id t hat J .S . “p ro ba

bly ha s th e mos t di ff

ic ult y re c a lli ngsp e c if

ic de ta ils surrounding the sexual abuse by the par ents. Howe ver, his memorie s seem to support those re ported by the br oth ers .” J .S
. ha s d if fi c ult y wi th t he c on c e pt o f t ime a nd

wi th r e me mbe ri ngde ta ils
. Mahoney said that T.C. in particular made more detailed a lleg ations as time went on. Stephen S. testified that he and his wife L isa wer e foster pare nts for the boy s in the
su mme r o f 2 00 1. I n late Au g us t 20 01 , J.R. tol d St e ph e n th a t a pp e lla nt h a d s e xua lly

a bu se d h im,
us ingwo rd s su c h a s “ pe e -p e e ,” “ se x thin g ,” a nd “ mid dle ” to r e fe r t o a

pe nis . St e ph e n s a id t

hat J.R.8

made “ acc usations that [ appellant] taug ht him how to sw allow the liquid or spit it out or things of that nature .” J.R . told St ephen that his mother had also had sex with him and that his gra ndmother took pictures of him. J.R . also said that Uncle J onathan had sex wit h A.C., J .R.’s g randmother , and Donna Cinnamon; Stephen wa s not awar e until trial that Uncle Jonathan had be en in pris o n since 1998 and had ne ver lived in Eden. Stephen and his wife also testified that D.P. had lied a nd said that they wer e abusinghim because he wa nted to be plac ed in a diff ere nt home. De pa rtme nt i nv e sti g a tor

Mc F a dd e n te sti fi e d th a t in Se pte mbe r 2001, J.S. to ld h im that a pp e lla nt t ou c he d J .S. ’s “ bo o- hin ie ” wi th ap pe lla nt’ s “f ro nt pr ivate .” J.S. s a id “ that on e tim e [appellant] actually

touched him inside of his body ” and that it hurt
. M cF ad d en said that in an int e rv ie w w ithT. C. i n e a rl y 20 00 , T .C. sa id t

hat no on e ha d tr ie d to t ou ch his p ri vate s and tha t if any one did try , T.C. would tell his parents. Teri Trull, the Department ca seworke r assig ned to the children, te stified that she spoke to the children afte r she lea rned a bout their outcries, a

nd that the bo y s w e re ve rb a l, P.C. re fu se d to ta lk a bo ut it, a nd

A. C. t old he r t hat “ he r m oth e r t old

he r s he c ou ld not talk about the nasty stuff or the s ex thing.” I nstead, A.C. showed Trull what had ha ppened using De ns on ’s do lls a nd

by dr a wi ngpic tur e s. Me lod y Jete r int e rv ie we d the g ir ls i n July 20 01 , a ft e r D e ns on

re po rt e d th e ir

ou tc ri e s; at the time, A.C. was f

ive and P.C. w as three . J eter videotaped those interviews, a nd in P.C .’s interview, she said that her daddy had touche d her w ith his “weiner” and with his fing er. Jeter a sked, “Who tried to touch [y ou] wit h [t heir] weiner ? ” P.C. an s we re d, “My Daddy ,” but then said, “ He doesn’t wa

nt me to.” P .C. said that she had touc hed A.C. and he r brother s while their clothes w ere on. She also said she saw her br others’ “wiene rs” when they did not shut t heir bathroom door and9

that sh e saw h e r p a re nts nake d wh e n the y we re “ do ing fu n. ” I n A .C. ’s int e rv ie w w ithJete r, sh e sa id she wa s not supposed to tell any one “[i]f somebody touches y ou down there .” She then sa id, “And my —my daddy didn’t touch me down ther e.” She sa id, “Mans and boy s can’ t touc h us down there ,” on her “ pee- pee.” A.C. said that Denson taught he r to say no if someone trie d to touch her dow n there and that she ha d never seen he r par ents or brothe rs nake d
. L ater in the interview, she was playing with J eter ’s dol ls and said that two dolls wer e P .C. and J .S. and that they wer e “se x ing,” but then she said she had never seen P.C. and J .S. “ do that” and said she had never done any sexi ng . She said that the mommy and daddy dolls we re sexi ng , but that “ [n] obody didn’t teac h me how to do it.”

Al l si x ch ild

ren gav e test imo ny

thr ou g h v ide ota

pe s ta ke n in Oc tob e r 2 00 3. D. P. testified that appellant penetr ated his “butt” w ith his penis “[ a] whole lot,” “[a]ny time he fe lt like doing it.” D .P. said that Donna wa s usually prese nt, as wer e the other children, a

nd that he saw appellant pe netrate the other boy s’ anuse s with his penis. D.P. t estified that ap p ell ant sometimes made D.P. put his mouth on appellant’s penis. D.P. said that appe llant had a c amer a in the bedr oom to rec o rd t he fa

mily ’s sexual activity

and put it on the computer a nd had picture s of the childre n naked a nd of him and Donna

having sex. D.P. testified t hat he had seen his gr andmother na ked and h a v in g s e x w it

h a p p e ll a n t. D
. P. d e n ie d s e e in g h is U n c le M ik e , w h o w a s a p o li c e o f f ic e r , or Aunt Trac ie nake d, but he said t h at ap pellant sent picture s of the childre n to Mike, “so they knew what was g oing on.” D.P. a lso sa id that w hen another uncle, Unc le Tra cy , baby sat for him and the other bo y s in Lub bo c k, he ha d s e x with his g ir lf ri e nd in f ro nt o f t he m. D.P. admitted that he told lies about his f oster pare nts be cause he thoug ht they wer e too strict and he wa

nted t o g et out of t he foster home. Howe ver, he testified that he wa s not ly ing10

a bo ut w hat th e Cin namon s d id to him a nd the oth e r c hil dr e n a nd that he wa s n ot c on fu sin g wh a t hi s Uncle Jonathan did with what his pare nts had done. D.P. also said that the Cinnamons ha d beate n him a nd the oth e r c hil dr e n, thr ow n the m int o wa lls a nd of f a po rc h, a nd

pin c he d th e m w ithpli e rs . T.C. testified that ap p el lant “put his private in my bottom” often and that he saw
a pp e lla nt d o th e same to the oth e r b oy s. T. C. s a id t hat a pp e lla nt m a de T. C. t ou c h a

nd ho ld appellant’ s privates with his hand and that appellant put his mout h on T.C.’s private. T.C. testified that D on na

kn e w a bo ut t he a bu se a nd “ did it wi th us , to o. ” T. C. r e po rt e d th a t he ha d s e e n h is g randmother

naked a nd that she took pictures of the family naked. H e testified that Aunt Tr acie and Un c le Mik e we re nake d wi th the c hil dr e n a nd too k pic tur e s that the y pu t on the c omp ute r, a nd

sa id that he told Trull t h at M i k e put “his private in our bottom” and that Tra cie made them suck “he r top.” T.C. said he ne ver ta lked to J .S. or J .R. about what abuse he had r eporte d.

J.R. t e sti fi e d tha t app e lla

nt “p ut his pr ivate s in

my bu tt, his fr on t pa

rt ” a nd ma de J.R. put his “private in [appellant’s] back pa rt.” J.R . said that appellant put his mouth on J.R.’s penis and ha d J.R. do the same to a

pp e lla nt’ s p e nis . J.R. sa id t

hat D on na did no t kn owa

bo ut a pp e lla nt’ s a bu se
a nd de nie d th a t he ha d s e e n a ny thi ngha pp e n betw e e n a

pp e lla nt a nd the oth e r c hil dr e n, bu t he did see pic tures of na

ked people , including a

unts and uncles, on a

ppellant’s computer . J .R. never sa w his g ra ndmot he r or his Un c le Mik e a nd Aunt Tr a c ie nake d, no r did he e ve r s e e a ny of tho se a du lts taking pictures of

the childre n. J .S. ex plained that he r efe rs to his penis as hi s “privates” and his anus as his “bootie.” He te sti fi e d tha t app e lla

nt stu c k “h is pr ivate up my bo oti e ” many

tim e s and so me tim e s p ut h is p ri vateJ.S.’ s te sti mony on thi s p oin t w e nt a s f

oll ow s: 4 Q. Did [appellant] ever put his private in y our mouth? A. Ye s. Q. Did that—did he do that ver y often? A. Not that often. Q. Ok a y . D id you

e ve r d o th e same thi ngto h im? A. Ye s. Q. Put y our mouth on his private? A. No t th a t. Q. Yo u d idn ’t

do that? A. No, sir. 11 in J .S.’s mouth. J .S. saw appe llant do the same to his brothers a nd s i s t er s , an d h e saw on the 4 computer pic tures of the children a nd the Cinnamons naked a nd having sex. J .S. testified that he sa w h is p a r e n ts h a v in g s e x w h il e h e w a s in b e d w it h th e m. J. S. s a id h e to ld T r u ll “ [t ]h a t t

h e y s ti c k th e ir [] pr ivate up ours . A nd

the y ma de us sti c k o ur [] pr ivate up the ir s. ” J.S. te sti fi e d th a t he ne ve r s a w h is g ra ndmot he r, Un c le Mik e , or Aunt T ra c ie nake d; h e saw U nc le Tr a c y nake d a nd havin g se x with

his g irlfriend when they lived in L ubbock. J.S . said that his gr andmother took picture s of the childre n, but only when they

wer e dre ssed, such a s at a birthday party . J .S. also said that Uncle Jonathan had
se x with a ll o f t he bo y s and

wi th t he g ir ls. A.C. testified that her f

ather had put his private in her private “a lot” and made her kiss his private. She was a sked, “D id y ou ever put y our mouth on [appellant’ s p rivate],” and she12

answe red that she had. She also said that appellant had kissed her privates, “[ b]ot h front and back.” She stated that appe llant had touched he r on the front of her private and had put his fing er inside he r private. A .C. remember ed telling J eter that no one had ever

touched he r private . She said that the fi rs t pe rs on

sh e tol d a

bo ut t he a bu se wa s De ns on , who te sti fi e d ab ou t the g ir ls’ ou tc ry state me nts
. A.C. testified that J .R. had taken pic tures of he r and the other c hildren and put the m on the computer. She also rec ounted an incide nt in which she said her siblings, par ents, g randmother , and aunt we re all naked, a

nd two clothed poli ce office rs, i ncluding Uncle Mike , watche d; but A.C. then testified that she had ne ver se en her g randmother

naked. P.C. wa s a sked wheth e r a pp e lla nt e ve r d id a

ny thi ngba d to P.C. wi th a

pa rt of his body . She answe red, “ Huh-uh,” and, “N o.” She wa s asked, “S o y o u d o n’t reme mber,” and she
answe red, “ Huh-uh.”

Ap pe lla nt p rod uce d e vid e nc e sh ow ingthat D .P. ha d li e d a bo ut h is f os te r p a re nts beca use he w anted to move out of the ir house, and L isa S. testified that all fo ur boy s “told stories a lot.” Appe llant also produce d testimony about U n cl e J o n athan’s abuse of the boy s and about
sever al re ports of alleg ed neg lect of the children by Donna or appellant. The Depa rtment found that the first re port of Donna ’s neg lect of J .S., J .R., and A.C., made be fore the Cinnamons married, w as true; other alleg ations made in 1998 and 1999 wer e ruled out a nd the case s wer e closed. Dr. Willi am Cofield, J r., testified that he perf ormed psy cholog ical evaluations of t he children in 2001 and 2003. I n 2001, none of the children ma de any alleg ations of sexual abuse by the Cinnamons. I n 2003, he interviewe d the childre n to “make observations which may be re levant” at trial. He found that “ly ing is one of [ D.P.’s] most prominent difficulties” and that D.P. had been described as “so manipulative”There was some testimony about whether appellant had rente d or owne d a sec ond computer 5 in the past, but the evidence was not clea r on this point. This was the only computer found in the Cinnamons’ home. 13 and as someone who would pit a dults a g ainst eac h other. When he examined P.C . in 2001, he “r uled
o u t s e x u a l a

b u s e . ” D r . R i c h a r d W a l l , a c l i n i c a l p s yc h o l o g i s t , t e s t i f i e d , “ It i s a

r e a s o n a b l e p o s s i b i l i t y, that is, a signifi ca n t p o s s i bility rathe r than a

remote possibility , that all the data that has bee n considere d in this case ca n be accounted for by

sexual play -abuse among the siblings,” r ather than
se xua l a bu se by the Cin namon s. Wal l st a te d th at it wa s p ro ba

ble that c hil dr e n o nc e a

bu se d s e xua lly would “continue to e ng ag e in sexu al p l ay there afte r.” Adistrict attorney ’s offic e investig ator testified that in J une or July 2001, law enf

orce ment seized a computer from the Cinnamons’ home,
on whi ch they

found sexual pictures of a ppellant and Donna

and pornog raphic imag es fr om the I nterne t, but no pornog raphic pictures of the childre n. 5 Appellant denie d all of the a lleg ations made by the children. Asked why the childre n would invent such st ories, he answe red, “I ’ve sat and thought about i t and thought about it and the only thing I can think of is this previous, y ou know, sexual—being sexually molested from Jonathan. And I g uess it’s just been re ally traumatic on the m. An d t h en beingtaken a way from us and, you kn ow , a wa y fr om t he ir ho me . . . a ll this ha s b e e n a tr a umatic e xpe ri e nc e on the m. T hat’ s th e on ly thing I could think of

, y ou know
. . . besides being talked to ove r and ove r and a ll that.” Appellant admitted taking pictures of Donna and himself and putting the m on the computer, but de nied taking pictures of the children in a ny kind of sexual situation. Donna Cinnamon, who was also indicted f or
se xua l a bu se of the c hil dr e n, te sti fi e d that Jona tha n ta ug ht the bo y s the te rm “ se xing .” Do nn a sa id that she and a

ppellant took sexual pictures of ea ch other and put them on t he computer , but testified14

that the childre n wer e not pre sent when the pictures we re taken. Donna t es t i fi ed that she was not
awa re that the children w ere sexually active while the family lived in E den and she denied a ll of the children’ s alleg ations. She learne d of the a ccusations about a y ear afte r the childre n wer e re moved from the home a

nd said that the Department had “org anized this conspiracy .” Appe llant’s mother de nie d ta kin g pic tur e s o f the c hil dr e n wh ile the y we re nake d or havin g se xua l c on ta c t w itha pp e lla nt. On re buttal, the State called one of the C innamons’ neighbors in Eden, who te stified that sh e on c e e nte re d th e Cin namon s’ ho us e and saw the c hil dr e n r unnin g a ro un d in sid e wh ile
a pp e lla nt w a tc he d por

no g ra ph y on the c omp ute r; Do nn a

wa s p re se nt a

nd sto od in f ro nt o f a pp e lla nt. Kathy Ellis, a school nurse in E den, testified that the boy s were often hung ry , sometimes had flea s
a nd tic ks in t

he ir ha ir , h a d s ma ll i nju

ri e s, so me tim e s la c ke d s oc ks , a nd we re un ke mpt

or wo re dir ty clothes. Ellis once saw scr atche s on T.C.’s neck; he said his mother had done it, but also said that “may be the c at did it.”
Suf fi ciency of the Evidence as to P .C. Appellant ar gu es that the trial cour t should have g rante d his request for a dire cted
ve rd ic t a s to the c ha

rg e s th a t he a ssa

ult e d P.C. He a sse rt s that the e vid e nc e is le g a lly a nd fa c tua lly insufficient to support any of the c ounts. The court’s charg e authoriz ed appellant’s conviction on finding s that appellant: ca used P.C.’s sexual org an to c ontact appellant’ s mouth ( count one), c aused P.C.’s an u s t o contac t appellant’s mouth (c ount two), ca used P.C.’s mouth to contact appellant’ s anus (c ount three) , cause d P.C.’s mout h to con t act appellant’s sexual org an (c ount four), a nd penetr ated P.C.’s fema le sexual org an with his fing er ( count five)
.15 I n her 2003 testimony , P.C. denie d that appellant ha d ever done any thing ba d to her with his body . Howeve r, in her July 2001 interview, P.C. told J eter that her da ddy

had touche d her wi th his “ we ine r” a nd wi th his fi ng e r. F ur the r, De ns on te sti fi e d tha t fr om he r ve ry fi rs t ses sio ns wi th P.C. and A.C., the gir ls put doll s t o get h er i n sexual posit ions, and that A.C. told Denson that
a pp e lla nt kis se d he r g e nit a ls an d he r a nu s, “ did the same thi ngto P .C. ,” a nd tol d b oth g ir ls t o k iss his pe nis a nd

a nu s. Whe n D e ns on

sp ok e to P .C. , P .C. sa id t hat “ he r m a ma

a nd da dd y ha d b oth kissed her down there ” and told her to kiss them on their g enitals. P.C. said, “Sometim es me a nd [A.C.] would kiss Daddy ’s weine r.” D uring the g irls’ play -date with the boy s, the children show ed sexualiz ed beha

vior toward e ach othe r, and P.C. was e specia lly ag g ressive t o wa rd the boy s. The children use d the term “sexing,” which the g irls de scribed as kissing all over, but that T.C. said was “putting your middle in someone’s butt.”

B a se d o n th is r e c or d, we ho ld t hat the e vid e nc e is l e g a lly a nd fa c tua lly su ff ic ie nt t o support the jury ’s ver dicts on counts one through four. The jury , as t rier of fac t, was the e x clusive judge of the witnesse s’ cr edibility and the wa

y in which evidentiar

y conflicts should be re conciled. See J ones , 944 S.W .2d at 647. I t was for the jury to acc ept or re

j ec t al l or any

of the e vidence prese nted by

either side and t o d ra w reasonable inf ere nces f rom the evide nce. See B arnes , 62 S.W .3d at 298. Ba sed on Denson’s te stimony of the g irls’ outcry

statements, combined with P.C.’s 2001 interview a

nd the other e vidence about t he children’s behavior, a rational jury could have found the essential elements of the first four counts bey ond a re asonable doubt. See J ohnson , 23 S.W .3d at 7. Even w hen viewe d in a neutra l light, the evide nce suppor ting the ve rdict is not so weak that the ver dict is clear ly

wrong , nor is the contra

ry evidenc e is so strong that jury could not have f

ound all the elements of the crime bey ond a rea sonable doubt. Pr ibl e , 175 S.W .3d at 731. Viewing the16

evidenc e as a

whole, not in isolation, see Barne s , 62 S.W .3d at 297, and r esolving any inconsistencies in favor

of the ve rdicts, see M

oreno , 755 S.W .2d at 867, the evidenc e is leg ally and fac tually sufficie nt to support the jury ’s verdicts that appellant sex ually abused P.C. as desc ribed by counts one throug h four.

As for c ount five, howe ver, w e hold the evide nce is insuffic ient to s u p port the
conv i ct ion. A.C. testified that appellant touche d her inside he r private , but P.C . made no suc h state me nts
. P.C. sa id that a pp e lla nt tou c he d he r wi th his fi ng e r, bu t did no t make a ny st ate ment s g iving r ise to an infer ence of pene tration. The penal code pr ovides that a pe rson commits ag g ravated sexual assault if he pene tr at es a child’s se x ual org an “by any means.” Tex. P en. Code Ann. § 22.021(a) (1)( B) (i). I f a person touches a child’s anus, brea st, or g enitals with a sexual intent, he commits indecenc y

with a child. Id . § 21.11 (West 2003). Penetration t h er efor e is a ne cessa ry
e le me nt o f c o u n t ’ s f

i v e ’ s a l l e g a t i o n o f t h e o f

f e n s e o f a g g r a v a t e d s e xu a l a s s a u l t
. T h e o n l y

wa y to support this conviction would be to assume that bec ause appellant penetrated A.C.’s sexual orga n with his finge r, he must have done the same to P.C. S uch an inf er en ce i s n o t supported by the evidenc e. We hol d that the evidence is leg ally insufficient to support the conviction on count five.

We overr ule appellant’s first issue as to counts one throug h four. We sustain his issue as to count five, and we reve rse the conviction as to c ount f ive in tr ial court case number 1457 (our
cause number 03-04- 00383-CR).
Suf fi ciency of the Evidence as to A.C. Th e c ourt ’s c ha

rg e a uth or ize d a

pp e lla nt’ s c on vic tio n o n f

ind ing s th a t a

pp e lla nt:
cause d A.C.’s mouth to contac t appellant’ s sexual org an (count one), c aused A .C.’s mouth to contact17

appellant’ s anus (count two), cause d A.C.’s sexual org an to contac t appellant’s mouth (c ount three) , pe ne tr a te d A.C .’ s sexua l org a n with his fi ng e r (c ount fo ur ), a nd pe ne tr a te d A .C. ’s mouth w ithhis sexual orga

n (count five). Appellant argues that the evidenc e is le g ally insufficient to support the convictions for c ounts two and five. He argues that there was no evidenc e prese nted as to c ount five
a nd that, b e c a us e A. C. s a id “ [h]uh -u

h” wh e n a sk e d w he the r s he e ve r t ou c he d a pp e lla nt’ s anu s w ith he r m ou th, the e vid e nc e is l e g a lly ins uf fi c ie nt to su

pp or t c ount tw o. He a rgue s that th e e vid e nc e is fac tually insufficie n t to support the jury ’s ver dict as to counts one, thre e, and f our bec ause the evidenc e is “for

the most part,” A.C.’s a ffirmative answe rs to “a se ries of le ading questions” aske d by the State. Appellant argues that A.C.’s testimony that other pe ople, including her g randmother
a nd tw o p oli c e of

fi c e rs , w e re so me tim e s p re se nt s ho ws that th e g uil ty ve rd ic t is c le a rl y

un jus t. A.C. testified that appe llant had kissed her privates, “ [b] oth front and ba ck.” D enson testified that A.C. told her that appe llant “said to also kiss him ther e, ref err ing to w hat would have be e n h is a nu s, ” a nd that she a nd P.C. kis se d ap pe lla nt o n h is a

nu s. Th is e vid e nc e pr ov ide s le g a lly
s u ff i ci en t support for the jury ’s ver dict as to count two, and a s discussed above , even w hen the evidenc e is viewe d neutra lly , the evidence is fac tually sufficie nt to support the verdict on c ount two. As for c ounts one, three , and four , as i n t h e counts related to P.C., the evidenc e is leg ally and fac tually sufficie nt to support the jury ’s ver dicts. A.C. both testified and mad e an outcry that appellant kissed he r “dow n there ,” had he r kiss him on his “weiner,” an d put his finge r inside her privates. He r testimony

conce rning the pre sence o f o t h ers pose d a cr edibility issue for the jur

y ’s consideration.18 Count f ive , h ow e ve r, a lle g e d th a t a pp e lla nt penetrated A.C.’s mouth with his s exual org an. A person commits the offe nse of ag g ravated sexual a ssault if he either penetr ates the c hild’s mouth with his sexual orga n or ca uses the child’s mouth t o co n t ac t h i s sexual orga n. Se e id
. § 2 2. 02 1( a )( 1) (B )( ii) , ( v) . A .C. te sti fi e d th a t sh e ha d kiss e d ap pe lla nt’ s p ri vate a nd

wh e n a sk e d if she eve r “put he r mouth on it,” she said y es. Howe ver, the State never asked whether appellant put his pr ivate in her mouth, and A .C.’s statements and testimony do not show that appellant pe netrated her mouth with his penis. Penetration is a necessar y element of count five, and there i s no evidenc e of pene tration, as opposed to c ontact. There fore , the evidenc e is le g ally insufficient to support the jury ’s ver dict as to count five.

We o ve rr ule a pp e lla nt’ s se c on d is su e a s to c ounts on e thr ou g h fou r. We s us ta in h is second issue a s to count five. We there fore reve rse the jur y ’s g uil t y v er d i ct o n count five in trial court c ase numbe r 1456 (our cause number 03-04- 00382-CR).
Suffic ie nc y o f the Evi de nc e as to J. S. Appellant wa s char g ed with pene trating J .S.’s mou t h (c o u nt one) a nd J .S.’s anus (count two) with his penis. Appellant conte nds that the evidenc e is leg ally and fa ctually

insufficient to support his conviction as to J .S. Bec ause J .S. sa id, “ Not that,” whe n asked w hether J .S. had “put [hi s] m outh on his private,” a ppellant ar g ues that the e vidence is leg ally insufficient to support count one. He argues that the e videnc e is factua lly insufficient to support the c onviction for count two beca use J.S . said he “ forg ot” what he called the parts of his body wher e he g oes to the bathroom a nd did not know if he ca lled it his “front side.”19 Al tho ug h J.S. did

say he ha d n ot p ut h is m ou th o n a pp e lla nt’ s p ri vate , J.S. a lso sa id “[y ]es” when a sked if appellant “put hi s private in” J .S.’s mouth. We cannot infringe on the jury ’s
rec onciliation of evidentiar y conflicts and e valuation o f t he testimony
. See J ones , 944 S.W .2d at 647. There fore , we hold the e vidence is leg ally and fac tually sufficie nt to support the jury ’s finding of g uilt as to count one. As for c ount two, J .S. said that appellant stuck “his private up my bootie,”
a nd D. P. a nd T. C. t e sti fi e d th a t th e y

saw a pp e llant put h is p e nis in t he oth e r b oy s’ a nu se s. McF adden tes t i fi ed that J .S. told hi m that appellant touche d J .S.’s “boo-hinie” with his “front pr ivate ” a nd

tha t a pp e lla nt “ tou c he d h im i ns ide of his bo dy .” Th e e vid e nc e is l e g a lly a nd fa c tua lly sufficie nt to support the finding of g uilt as to count two. W e over rule a ppellant’s third issue.
S u f f i ci en cy o f

th e E v i d en ce a s to D. P. Appellant asse rts that t h e ev i dence is factua lly insufficient to support the jury ’s convictions as to D.P., larg ely basing his arg ument on evidenc e that D.P. fre quently lied. The only evidenc e as to appe llant’s penetr ation of D.P.’s mouth was D.P.’s stateme nt in his 2003 int ervie w that appellant “made me put my mouth on his pe nis.” D.P. said this did not h a p p e n v e r y o f t e n , a n d t h e S t a t e a s k e d , “ N o t n e a r a s m u c h a s t h e o t h e r p e n e t r a t i o n i n y o u r b o t t o m ?” D.P. answer ed, “Yes, si r.” Mahoney testified t hat D.P
. said he had been abused through “ oral sex
a nd a na l se x,” bu t Ma

ho ne y wa s n ot a sk e d a

nd did no t te sti fy

a s to wh a t “ or a l se x” me a nt. As in the case of t he allegations made with reg ard to A.C., ther e is no evidenc e that appellant pe netrated D.P.’s mouth with his pe n is, only that he ca

used D.P.’s mouth to contact app el l an t ’s penis. Althoug h both oral pene tration and ora l contact c onstitut e the of fense of ag g ravated sexual assault, see Tex. P en. Co d e An n . § 22.021(a) (1)( B) (ii), (v), the State did not20

c ha rg e a pp e lla nt w ith c a us ing D. P.’ s mo uth

to c on ta c t a

pp e lla nt’ s p e nis . Ins te a d, it c ha

rg e d h im w ith penetr ation. Wit hout e vidence of more than c ontact, the e vidence is leg ally insufficient to show that appellant c ommitt ed count one as to D.P.

Th e e vid e nc e is b oth

le g a lly a nd fa c tua lly su ff ic ie nt a s to c ount t

wo , h ow e ve r. D. P. testified that appe llant penetrated D.P.’s “butt” with his penis, and T.C. said that he sa w appe llant put his private in D.P.’s private. A lthough ther e we re so m e inconsist encie s in the children’ s testimony and despite D.P. admitting that he li ed to get plac ed out of his foster home, those issues
we re fo r t

he jur y to c on sid e r. W e wi ll not se c on d- g ue ss t he jur y ’s de te rm inatio n o f w itn e ss
c re dib ili ty

or the re c on c ili a tio n o f e vid e nti a ry c on fl ic ts. We s us ta in app ell ant ’s f ourt h is su e wi th reg ard to co u n t o ne, and ove rrule his issue a s to count two. We rever se the jury ’s conviction for count one in trial c ourt ca se number 1459 ( our ca use number 03- 04-00385-CR).
Suf fi ciency of the Evidence as to T.C. Appellant ar g ues that the e vidence is leg ally and factually

insufficient to support the jury ’s g uilty

verdic t as to count one a

nd that the evidenc e is fac tually insufficient to support count two beca use of T.C.’s testimony that his gr andmother, U ncle Mike, a nd Aunt Trac ie wer e sometimes prese nt for the a

buse. Appe llant arg ues that he is not see king to have this Cour t “e v al u at e the
cre dibilit y

of the witness but to revie w the fa ctual suff iciency of the e vidence .” T.C. testified in his 2003 int ervie w that appe llant “put his private in my bottom.” T.C. also said that appellant “ put his mout h on [T.C .’s] private.” Ma honey said that appe llant made the bo y s per fo rm “ or a l and a na l se x,” bu t di d n ot p ro vid e a ny fu rt he r d e ta ils . T he e vid e nc e is b oth leg ally and fa ctually

sufficie nt to support the jury ’s ver dict of g uilt as to count t wo, which alleg ed21

that appellant penetr ated T.C.’s anus with his penis. Despite some inconsistenc ies in the evidenc e, T.C. stated that appellant put his “private” in T .C.’s “bottom,” and D.P. sa id that he saw a ppellant put his penis in D.P.’s brothers’ anuse s. T.C. asserted that his gra ndmother, aunt, and uncle wer e prese nt
. E ven assuming that these c laims were completely disproved or utter ly

unbelievable , howeve r, does not re quire the ju ry to disreg ard T.C.’s te stimony altog ether . The jury

could have believed some, but not all, of T.C.’s testimony
. See J ones , 94 4 S. W.2 d at 64 7; Barnes , 62 S.W .3d at 298. We overr

ule appe llant’s fifth issue as to count two. Count one, howeve r, is not supported by sufficie nt evidence . T.C. said that appellant put his mout h on T.C.’s private, but T.C. was not asked whether he was forc ed to put his mouth on appellant’ s penis, much less whethe r appe llant put his penis ins ide T.C.’s mouth. Mahoney said that T.C. was subjecte d to oral and a nal abuse , but did not provide further explanation. There is no evidenc e that appe llant penetrated T.C.’s mouth with his penis. There fore , we sustain appe llant’s issue as to count one a

nd reve rse the jur

y ’s g uilty verdic t as to count one in trial cour t case number 1460 (our c ause numbe r 03-04- 00386-CR).
Suf fi ciency of the Evidence as to J.R. Appellant conte nds that the evidenc e is le g ally and fac tually insufficient to support a convic tion on count one bec ause w hen J.R . was a sked whe ther a ppellant put his mouth on J .R.’s penis “or the other wa

y around,” the word “ penis” was used instead of “privates.” Appe llant further
c on te nd s th a t th e e vid e nc e is f a c tua lly ins uf

fi c ie nt to su

pp or t a c on vic tio n on c ount t

wo be c a us e J.R. testified that he ha d seen his g randmother and appe llant naked in L ubbock and in Ede n.22 J .R. testified in his 2003 intervie w that appellant “put his pr ivates in my butt, his front part.” He wa s asked whe ther a ppellant “put his mouth on y our penis or the other way around,” and he answ ere d, “Ye s, sir.” J
. R
. was a sked whe ther a ppellant taug ht him to s pit out any “fluid” appellant pr oduced, a

nd J .R. said, “No, sir,” but Stephen S. testified that J .R. told hi m that appellant taug ht him “how to swallow the liquid or spit it out.”

B a se d o n th is r e c or d, we ho ld that the e vid e nc e is l e g a lly a nd fa c tua lly su ff ic ie nt t o support the jury ’s g uilty

verdic ts a s to both counts. There is no indication that J .R. was conf used as to the meaning of “pe nis,” as opposed to “ privates.” I t was for the jury to consider J.R.’s allegations about his g ran d m o t h er and to make inf ere nces f rom and re solve any

conflicts in S.’s and J.R .’s testimony
. See J

ones , 94 4 S. W.2 d at 64 7; Barnes , 62 S.W .3d at 298. We will not second-g uess the jur y ’s c re dib ili ty

de te rm inatio ns . We ov e rr ule a pp e lla nt’ s si xth is su e on

a pp e a l.
Ef fectiveness of Trial Coun sel I n his seventh and f

inal issue, appellant a

rg ues that he rec eived inef fec tive assistance of counse l beca

use his attorney

did not object during the guilt/innocence pha se of tria l to testim ony of extraneous off

enses c ommitt ed by

appellant. He ar g ues that his attorney should have objec ted to: T.C.’s testimony

that appellant touched T
. C
. ’s penis with his hand, made T .C. touch appellant’s penis with T.C.’s hand, and put his mouth on T.C.’s penis; J .S.’s testi mony that he sawappellant

“ sti c k his pr ivate up ” his sis te rs ’ “ bo oti e ” ; J.R.’ s te sti mony that a pp e lla nt ma de J.R. pu t h is pen is in appellant’s a

nus; and A.C.’s testimony that appellant put his pe nis in A.C.’s “private.” Appellant did no t a sse rt

that he re c e ive d in e ff

e c tiv e a ssi sta

nc e of c ouns e l in

his mot ion

fo r n e w tri a l.23 To show ineff

ective a ssistance of counsel, a defe ndant m ust show that his attorney ’s p e r f o r ma n c e b o th f

e ll b e lo w a n o b

je c ti v e s ta

n d a r d o f r e a s o n a

b le n e s s a n d p r e

ju d ic e d h is case . Strickland v. W

ashington , 4 66 U. S. 6 68 , 6 87 (1 98 4) ; Tho mp so n v . S tat e , 9 S. W. 3 d

8 0 8 , 8 1 2 ( T e x. Cr im. Ap p. 19 99 ); Bl e v ins v . S tat e , 18 S.W .3d 266, 271 (Tex. App.—Austin 2000 , no pet.). The de fe nd a nt b e a rs the burd e n o f ( 1) ov e rc omi ng a str on g pr e su mpt ion that c ouns e l’ s p e rf or manc e fe ll within the rang e of r easona ble profe ssional a ssistance and (2) bring ing forth a re cord showingthat counsel’s pe rfor

mance was not base d on sound trial strateg y . Thompson , 9 S.W. 3d a t 81 3; Blevins , 18 S.W. 3 d a t 2 7 1
. Wh e n th e r e c o r d is s il e n t, w e w il l n o t s p e c u late a s to w h y c o u n s e l a c te d in a particula r wa y . Se e J ac k so n v . S tat e , 87 7 S.W. 2d 76 8, 77 1 ( Te x. Cr im. Ap p. 19 94 ); Ma y hu e v . S tat e , 969 S.W .2d 503, 511 (Tex. App.—Austin 1998, n o p et.). W ithout an evidentiary hear ing on the issue of ef fec tiveness, the def

endant’ s burden is diffic ult to meet, and ra rely will we find counse l was ineffe ctive. Blevins , 1 8 S
. W
. 3 d at 2 7 1 -7 2 (q u o t i n g Thompson , 9 S.W. 3d a t 81 3) ; see M

ayhue , 969 S.W. 2d a t 51 1. We e va luate tr ia l c ouns e l’ s e ff e c tiv e ne ss f

ro m hi s p ers pect ive a t tr ia l, n ot i n hindsight, and w e consider the repr esentation in its tot ality , rathe r than foc using solely on isolated acts or omissions. Mayhue , 969 S.W .2d at 510.

Ap pe lla nt’ s c ouns e l w a s ze a lou s and inv olv e d in the c a se , r a isi ngob je c tio ns , c ro ssexamini n g t he State’s witnesse s, highlig hting inconsistenc ies within the witnesses’ testimony or b et we en t es t i m o n y

b y d i ff er en twi t n es s es , an d

at t em p t i n g t o fu rt h er

h i s d ef en s i v e s t ra t egy

t h ro u gh appellant’ s witnesses. Appellant’ s defe nsive argument was that the children’s memories had bee n influence d by the questi oning to whic h they wer e subjec ted by

the Depa rtment and that the c hildren’s stories wer e fa

ntasies involving their

g randmother , an aunt, a

nd an uncle who was a police off icer
.24 Considering the totality

of the re prese ntation provided, rather than f o cu s ing on the isolated instances of

which appe llant complains, see M ayhue , 969 S.W .2d at 510, appellant ha s not shown that his attorney ’s perf ormanc e fell outside of the r ang e of r easona ble profe ssional assistance or pre judiced his ca se. See Thompson , 9 S.W .3d at 812. Fur ther, in this case , the reco rd cannot adequat el y re fl ect the motives behind trial counsel’s a ctions. Ry lan de r v . S tat e , 101 S.W .3d 107, 11 0- 11 (T e x. Cr im
. App. 20 03 ); Blevins , 18 S.W .3d at 271-72. We will not second-g uess or speculate as to counse l’s rea soning a nd trial strateg y . See M

ayhue , 969 S.W .2d at 511. The a lleg ed defic iencies of which appellant complains are not so prominent or damag ing a s to render counsel’s perf ormanc e, when viewed as a whole, ineffe ctive. We the ref ore overr ule appellant’ s seventh issue.
Conclusion The e vidence is sufficie nt to support the j ury ’s ver dicts as to all counts in trial court
c a se nu mbe rs 14 58 a nd 14 61 (o ur

c a us e nu mbe rs 03 -04 -00384 -C R and 03 -0 4- 00 38 7- CR, respe ctively

), and we affirm the trial court’s judgments of conviction i n those cause s. We hold that the evidenc e is leg ally

insufficient a s to count five in trial court case number 1456 (our c ause numbe r 03-04-00382- CR), c ount f ive in tr ial court case number 1457 (our cause number 03-04- 00383-CR),
c ount o ne in t

ri a l c ourt c a se nu mbe r 1 45 9 ( our c a use nu mbe r 0 3- 04 -0 03 85 -C R) , a nd c ount o ne in trial court c ase numbe r 1460 (our cause number 03-04- 00386 -C R ). W e there fore reve rse the
c o n v ic ti o n s a s to th o s e f

o u r c o u n ts a n d r e n d e r

ju d g me n ts o f

a c qu itta l a s to th o s e c o u n ts a lo n e . We aff irm the judg ments of conviction on the r emaining counts in those cause numbers.

__________________________________________25 David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med in Part; Reverse d and Rende red in Part Filed: May

19, 2006 Do No t Pu

bli sh