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

NO. 03-04-00194- CR

Do ugl as Wa r r e n, A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 403RD JUDICI AL DISTRICT NO. 30121 46, H ONO RAB LE BRENDA KENNEDY , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant Doug las Warre n appea ls his convic tions for ag g ravated sexual assault of a child, indec ency

with a child by contac t, and indecency with a child by exposure. See Tex. P en. Code Ann. § 21.11 (West 2003), § 22.021(a )(1) (B )(ii) (West Supp. 2005). W arr en conte nds in four issues that (1) the tria l c ourt err ed by desig nating the CPS worke r, rather than the victim’s mother, as the outcr

y witness, and (2) his counsel provided ine ffe ctive assistanc e by failing to file a swor

n motion for probation, (3) by failing to prese nt mitigating evidenc e, and (4) by g ener ally rende ring le g a l se rv ic e s b e low

a re a so na ble sta nd ard. We w ill ov e rr

ule the se c on te nti on s, bu t w e wi ll
never theless re verse the indece ncy con v i ct i ons beca

use they violate the constitutional g uara ntee
a g a i n s td o u

b l e j e o p ar dy.2 BACK GR OUND War re n w a s a c c us e d o f m ole sti nghis se ve n - y e ar- old nie c e , A .W. , o n o r a

bo ut Aug us t 10, 2000. A jury

trial was c onducted in Nove mber 2003. Warr en pled “ not guilty ” to all three counts and, in “stickingto his not guilty ” plea , War re n “i n s t ructe d” his counsel to not neg otiate a plea ba rg ain with the State. Simi larly , no motion for probation wa s filed. Duringvoir dire, Warr en’s counsel told the potential jurors, “ let me make this very , very clea r. . . . Doug las Warre n is not asking y ou for probation. That is not wha t this t rial is about. Doug las Warre n is asking you to find him not guilty .” Counsel went on to ex plain to the panel that, a lthough Warr en wa s elig ible for probation due to his lack of prior fe lony

co n v i ct i o n s , “we have not f iled that application for probation. Why ? [Beca

use] he is a sking to be found not g uilty .” Warre n subsequently confirme d that this was his personal de cision.

Th e State c a lle d A .W. , w ho wa s te n y e ars old a t the tim e of

tr ia l, a s it s f

ir st w itn e ss. A.W. beg an by testify ing about her family structure
. She explained that he r pare nts were divorce d and th at s h e li ved primar ily with her mother a

nd stepfathe r but also had e x tended pe riods of visitation wit h her f

ather and stepmother. Fre q u ently , those visits would occur at he r pate rnal grandp ar en t s ’ r es i d en ce ; t h ey o wn edp ro p er t y

o nwh i ch a m ai nh o u s e a n d s ev er al m o b i l e h o mes wer e located. Ma

ny members of

A.W.’s father ’s family

resided the re, inc luding Warr en, an aunt (B renda ) and her son, and anothe r uncle (Mar k), alongwith his wife and their three children. Ne xt, A .W. te sti fi e d a

bo ut a n in c ide nt t

hat oc c ur re d b e tw e e n h e r a

nd a ma le
c la s s mate , A n dy , w h e ns h e w a s in k in d e rg arte n. Sh e s a id

th a t, o n e d ay

o nth e p la

y g r o u n d , “ [h ]e asked me to put my

mouth on his private.” A.W. told her mother what happene d and, as indicatedA.W.’s father did not testify

. 1 A. W. a lso te sti fi e d a

bo ut a se c on d in cid ent w ithWar re n, wh ic h o c c ur

re d o n a la te r d a te 2 in a m obile home on her gr andpar ents’ property
. She testified that Warre n unzipped his pants, and had her unbutton her shorts and sit on his lap, straddling him and fac ing him, with his hands on her bottom. W hen someone knocked on the door, they stopped. Warren told A.W. “[n] ot to talk a bout it.” A.W. testified that both she and Warren wer e we aringunderw ear and that his penis was not exposed. Warren’ s conduct on this oc casion, a s descr ibed by A.W., did not consti tute either se x ual a ssa ult or se xua l c on ta c t. 3 b y th e o th e r w it

n e s s e s ’ te s ti mo n y , th e War r e nf a mi ly me mb e r s w e r e a ll aw ar e o f th is in c id e n t. A
. W. was ther eaf

ter plac ed in a diff

ere nt class, and no f

urther e vents with Andy

wer e alleg ed. A.W. then testified about the alleg ations ag ainst Warren. She e x plained that the incident occ urre d one nig ht during a visitation period at her g randpa rents’ proper

ty
. She knew it was shortly before h er gra n d mother passe d awa y , making it sometim e in Aug ust 2000. A.W. was sleeping in the l i v i n g room of the main house on a couc h that she re membere d was “ orang e,”
wea ring a nig htgow n that “had pur ple sleeve s with a littl e g irl on it.” She testified t hat Warre n was sleeping on a mattress on the floor and, after everyone else had gone to bed, he asked her about what she had done with Andy . A.W. testified that “ [h] e asked me to show him how,” then “[h]e got on his kn e e s” in f

ro nt o f h e r a

nd “ too k h is p ri vate ou t of

his sh or ts, ” and “ Ist uck my

mouth o n h is private.” She testified that they stopped bec ause he r father enter ed the room. A.W. demonstrated 1 thi s in c ide nt w ithtw o a

natom ic a lly

c or re c t do lls

. 2 A.W. testified that she first talked to her m o t h er ab o u t this incident and that her mot he r “ jus t st art e d c ry

ing .” A. W. a g re e d tha t CPS inv e sti g a tor L ind a B e rr e ra wa s “ the fi rs t a du lt that [she] rea lly

talked to in detail about what happene d with [ Warren].”4 The State called A.W.’s mother , Ang ela, a s its second witness. Be fore Ang ela took the s tand, t he pros e c u to r

s a id , “ Ia m n o t o f

f e r in g th e mo m a s th e o u tc r y w it n e s s . . . . B u t I

know [defense c ounsel] thought she was, so I wanted to bring it [up] .” Upon W arr en’s c halleng e, the tria l court c onducted a

hear ing outside the jury ’s pre sence to det ermine w hether Ang ela should be desig nated a s the outcry

witness. During the hear ing, Ang ela testified that she asked A .W. if any one had “me ssed with her se x ually ,” and A .W. responded “y es.” Ang ela then named severa l of A.W.’s male re latives, and A.W. responde d “no” to e ach na me. The la st name Ange la questioned wa s “Doug las [W arr en].” Althoug h A.W. init ially said “no,” she put her he ad down a nd appea red upse t wh e n s he ans we re d, pr omp tin g An g e la to re pe a t a pp e lla nt’ s n a me . A t th a t po int , A .W. sa id “ y e s”
and tol d h e r m oth e r t

hat Warr e n h a d a sk e d h e r t o p e rf or m th e a c t tha t she did

wi th A nd y a t sc ho ol. With ou t pro vid ing he r mothe r any fu rt he r de ta ils or c on fi rm ing wh e the r she and War re n h a d a c tua lly eng ag ed in this act, the discussion betwe en A.W. and Ang ela e nded, and the y both cried. At the conc lusion of this hearing , Wa rr en ’s counsel re -urg ed that Ang ela wa s the pr op e r o utc ry

wi tne ss b ut a c qu ie sc e d th a t he ha d n o a uth or ity be y on d “ the pla in l angua g e of a rt ic le 38.072(2)” to support his posit ion. See Tex. C o d e C ri m . Proc. Ann. a rt. 38.072, § 2 (West 2005) (per mitti ng hear say

testimony

by first adult to whom child made stateme nt about offe nse). The court
rec essed to consider the issue and ultimately ruled that Ang ela wa s not the outcry witness. At that tim e , th e c ourt

a lso state d th a t “ the re is n o o bje c tio n f ro m th e defens e as to w he the r o r n ot t his wi tne ss w a s th e ou tc ry

wi tne ss .” T he re c or d d oe s n ot r e fl e c t w hat oc c ur re d d ur ingthe re c e ss t o
re su lt i n th e c ourt ’s state me nt t ha t th e re wa s no liv e ob

je c tio n by War

re n a s to the ou tc ry

wi tne ss, but Warren did not cha lleng e the c ourt’s statement.5 Th e State pr oc e e de d to c a ll An g e la , wh o te sti fi e d g e ne ra lly a bo ut he r dis c us sio n w ith A.W. Bef

ore be g inning his c ross-examination, War ren approa ched the bench and reque sted that he be per mitted to question Ange la about the spe cifics of A.W.’s responses. The State had no objec tion “as longas he is not attempting to confuse w ho the true outcry witness is,” and the c ourt confir med th a t t h e is s u e h a d

a lr e a dy b e e n r

u le d o n . Wa

r r e n th e n e li c it e d A n g e la ’ s te s ti mo n y a b o u t w h a t A
. W. told her, just as she had pr eviously testified outside the jury ’s pre sence . Next, the St ate c alled CPS worker L inda B err era , who testified that A.W . “opene d up” and “let it all out” when discussing the Aug ust 10 incident. As Be rre ra be g an to testify about the details of A.W.’s outc ry , Warren objected that her testimony violated ar

ticle 38.072 and his due proce ss rig hts. See id. The c ourt overr uled his objection, and B err era ’s testimony continued. She

a ve rr e d th a t A .W. tol d h e r that “ sh e ha d take n h is t hin g y and su c ke d o n it ,” and

that Warr e n h a d to ld her to ke ep it a sec ret. B err era testified that A.W. said this had occur red dur i n g the eve ning one
wee kend whe n she wa s visiti ng her f ather at her g randpa rents’ pr operty
. Finally , the State called Warren’ s brother, Ma rk, who testified that Warren c onfided in h im that “ he wa s a sle e p a nd he wo ke up , a

nd [A. W.] wa s fo nd lin g wi th him

. . . . H e did n’ t g o in to any detail . . . but he did tell me that somet h i n g d i d h ap p en.” On cross-e x amination, Warren’ s
co u n s el ch al l en gedt h e c re d i b i l i t y o f M ar k ’s t es t i m o n y

b y h av i n g h i m ad m i tt h at , (1 ) e v en t h o u gh War re n a lle g e dly

ma de thi s statem ent ove r t wo y e ars a g o, and

War re n’ s c ouns e l ha d p re vio us ly qu e sti on e d M ark

on th is s pe c if

ic iss ue , M ark

did no t te ll a

ny on e a bo ut t he c on ve rs a tio n unti l “y esterda y ,” whe n he mentioned it to the prosec utor, and (2) despite W ar re n ’s s tatement, Mar k pe rm itt e d Warr e n to be aro un d h is thr e e c hil dr e n und e r ci rcum st anc e s th a t w e re “ [j]ust no rm a l,6

ever y day Uncle D oug ie.” Warren’ s counsel also asked Ma rk whe ther he had “be en takingany thing that might af

fec t y our memory ,” and Ma rk re sponded, “I

smoke wee d.” Other me mbers of the W ar re n family testified during Warren’ s defe nse. Warre n’s
c ouns e l e lic ite d te sti mony fr om B re nd a , ap pe lla

nt’ s siste r, that Warr e n n e ve r h a d th e op po rt un ity to molest A.W. because he was not alone wit h h er long e noug h to do so. A.W.’s gra ndfathe r
c o r r o b o r a te d th is b y te s ti f y in g th a t W ar

r e nw a s o n ly

ar o un d A.W. “[d ]ur in g th e d ay ti me h o u r s [] when e very

body was around.” Finally , Geor g iana B rown, a close fa mily friend, te stified that Warren was “ a truthful per son.”

War r e na ls o testifie d

. H e c la im e d th at t h e a ll e g a ti o n s w e r e u n tr

u e an d th a t A
. W.
a c te d a f f e c ti o n a te ly to w ar d

h im b e c a u s e s h e h a d

a c r u s h o nh im

. Wa

r r e nte s ti f ie d th a t, w h e nA
. W.
was a pproxi mately

three y ear s old, she showed him aff ection by “sitting on my

lap, rubbing back a

nd forth on me.” Warren sa id he never tol d any one in his family about this incident but acknowle dg ed, “y es, I should have.” I n his closing argument at the g uilt/i nnocenc e phase , Warren’ s counsel empha siz ed the witnesses’ te stimony

that Warren w as truthful and ha d a lac k of opportunit y to molest A.W ., and he ar g ued that Ang ela’ s testimony was not cr edible bec ause she had questioned A .W. in a leading fashion. Warre n’s counse l also attacke d the cr edibility of Mar k’s testim o n y , s ay ing that “the fa ct that he mig ht be fixi ng to g o to jail” would provide him a mot ive t o “make this story up” and “ testify for the State.” Fur

ther, he challeng ed Mar k’s fa ilure to tell any one about Warr en’s alleg ed
c o n f e s s i o nan d

n o t e d t h a tM ar k a l l o w e d W ar r e nt o b e ar o u n d

h i s c h i l dr e n t h e r e a f

t e r . F i n a l l y,7

defe nse counse l re- urg ed W arr en’s innocence and discussed the meaningof “r easona ble doubt” and the importance of the jury ’s dec ision.

The jury returne d its verdict, finding Warren guilty o n al l three c ounts. Bef ore proce eding to punishment, the trial court confirmed wit h Warren that it had been his dec ision “from the ve ry be g inn ing of the tr ia l” to not se e k pro batio n. War re n co nc e de d th is b ut r e qu e ste d to do so at that time. The c ourt explained that it wa s now the State’s de cision, and the prose cutor re sponded, “I do n ’t b el i ev e i two u l d

b e ap p r o p r i a t e a t t h i s t i m e” b ec au s e “ i twa s cl ea r t h at [ i t ] wa s a s t ra t egy decision betwe en [defense counsel] and his client.” The parties then ag ree d that no new e vidence
wo uld be pr e se nte d d

ur ingthe punis hm e nt

p h a s e , w a i v e d

op e nin g state me nts , a

nd pr oc e e de d d ir e c tly to c los ingargume nts
.

War re n’ s c ouns e l argue d th a t, i n d e c idi ngthe pr op er p un ish me nt, the jur y sh ou ld
c on sid e r t hat Warr e n h ad no c ri min a l hi sto ry , th a t he ha d a su pp or tiv e fa mil y wh o te sti fi e d to his innocenc e, and that the evidenc e indicated this wa s “not forc eful c onduct.” Contrar y to the State’s argument that Warren’ s punishment should be equiv alent to the lifetime for which A.W. will be imp a c te d b y

thi s o ff e ns e , the de fe ns e su g g e ste d the statut or y min imum of

fi ve y e ars ’ c on fi ne me nt. See Tex. P en. Code Ann. § 12.32 ( West 2003), § 22.021(e) ( West 2003 & Supp. 2005).

The jury sentenc ed Warren to nine y ear s on Count One, two y ear s on Count Two, and tw o y e ars on Count Th re e , to ru n c on c ur re ntl y . Th e tr ia l c ourt

e nte re d ju dg me nt i n a c c or da nc e wi th the jury ’s ver dict. This appea l followed.8 AN AL YSI S War re n ask s this Court to re ve rs e his c on vic tio n be c a us e the tr ia l c ourt

imp ro pe rl y desig nated CPS worker B err era as the outcry witness and bec ause his counse l provided ineff ective assistance by

failing to (a) f

ile an application f

or probation, (b) pre sent mitigating evidenc e, and ( c) g ener ally provide ser

vice at the require d profe ssional standard.
Out c r y W it ne ss

Al tho ug h h e ars ay

state me nts are g e ne ra lly ina dmi ssi ble, the y

may be a dmi tte d in sp e c if ic sit uatio ns wh e n p ub lic po lic y su pp or ts their us e an d c ir c ums tanc e s d e mon str a te the ir reliability

. Ma rti ne

z v . S tat e , 178 S.W .3d 8 0 6 , 8 10 (Tex. Crim. App. 2005). Article 38.072 delineate s such a situation. Pursuant to article 3 8
. 0 7 2 , i n a case alleg ing that sex ual assault or a sexual off ense was committed a g ainst a child under the ag e of thirtee n, an exception to the hea rsay rule e x ists to allow testi mony by the first adult, ot her tha

n the def endant, “ to whom the child made

a state me nt a

bo ut t he of fe ns e .” Te x. Cod e Cr im. Pr oc . Ann. art . 3 8. 07 2; Martinez , 178 S.W .3d at 810-11 & n.13-15 (discussing policy basis of exception). This adult i s d es i gn at ed as the “ outcry witnes s.” J

on es v . S tat e , 9 2 S. W.3 d 6 19 , 6 21 (T e x. Ap p. —A us tin 20 02 , n o p e t.) . G e ne ra lly sp e a kin g , th e e xce pti on

is a va ila ble fo r o nly

on e wi tne ss, un le ss t

he c hil d r e veal ed disc re te
occur renc es of the sa

me offe nse, or r evea led d i ff er ent offe nses, to separ ate a dults. Broderick v. Sta te , 3 5 S. W.3 d 6 7, 73 (T e x. Ap p. —T e xar ka na 20 00 , p e t. r e f’ d) ; He rn an de z v . S tat e , 973 S.W .2d 787, 789 (Tex. App.—Austin 1998, pet. ref ’d). Al tho ug h th e statut e pr ov ide s simp ly that the pr op e r out c ry wi tne ss is the “ fi rs t” a du lt to whom a child made a

statement about the offe nse, this provision has been interpre ted to me an theSe e als o Y e bio v . S tat e , 87 S.W .3d 193, 198 (Tex. App.—Texarkana 2 0 0 2 , pet. re f’d) 3 (initial statement that “did not g et into intim ate de tails” i n s ufficie nt to designa te as outcr

y , but su bs e qu e nt state me nt co nv e y ing de ta ils of of fe ns e wa s su ff

ic ie nt) ; Cas te lan v . S

tat e , 54 S.W .3d 469, 47 5- 76 (T e x. Ap p. —Co rp us Chr ist i 20 01 , no p e t.) (t e lli ngg ra ndmot he r o nly tha t de fe nd ant “ pu t hi s thi ngin t

hr ou g h th e ba c k” wa s in su ff ic ie nt t o de sig nate he r a s o utc ry wi tne ss, wh e re c hil d subsequently g ave statement to counselor “ in gr eat de tail”); Fo re ma n v . S tat e , 995 S.W .2d 854, 858- 59 (Tex. App.—Austin 1999, pet. ref ’d) (sec ond adult, to whom specific ac co u n t was g iven, was proper outcry witness wher e first adult could not remember child’s statement due to drug use); Sc hu ste r v . S

tat e , 852 S.W .2d 766, 768 (Tex. A pp.—For t Worth 1993, pet. re f’d) (initial statement to mother that appe llant “h ad touche d her” was a “g ener al allusion” and subse quent, detailed state me nt to psy c ho log ist

wa s su ff ic ie nt o utc ry

); Tor re s v . S tat e , 2000 Tex. App. L EXI S 4927, at *7 (Tex. App.—Austin J uly

27, 2000, no pet.) (not de signated for publi c a ti o n ) ( c h il d ’ s a c k

n o w le d g ment that defe ndant had “hurt her or touched he r in the private s” only “alluded to se x ual abuse rathe r than 9 first adult to whom the child “in some disce rnible manne r desc ribes the of fense .” Ga rc ia v . S

tat e , 79 2 S.W.2 d 88, 91 (T e x. Cr im. Ap p. 19 90 ); Jones , 92 S.W. 3d a t 62 1. A g e ne ra l a lle g a tio n o f a bu se is not enoug h. Ga rc ia , 792 S.W .2d at 91 (stateme nt must provide more than “g ener al allusion” of abuse)

. I n s e ve ra l c a se s w he re the c hil d h a s f irst mad e a g e ne ra l st a te me nt t o o ne a du lt, followed by

a more detailed recount of the offe nse to a sec ond adult, courts have considere d the issue of wh ic h w itn e ss s ho uld

be pe rm itt e d to te sti fy a s the ou tc ry wi tne ss a bo ut t he c hil d’ s st a te me nts
. See , e.g. , Fo re ma n v . S

tat e , 9 9 5 S
. W
. 2 d 854, 858 (Tex. App.—Austin 1999, pet. ref ’d) ( listi ng simil ar c ases) . I n such case s, if the initial statement convey ed nothing more than a “g ener al allusion” of abuse , then the re cipient of a subsequent, detailed statement should be desig nated as the outcr y witness, even thoug h that person wa s, technica lly , not the first adult to whom the child reve aled the offe nse. See , e.g. , Ga rc ia , 792 S.W .2d at 91 (initial statement “that something happene d at home, and that it had to do with abuse” was “g ener al allusion,” insufficie nt to designate first adult as outcr y witness). Neve rtheless, c ourts should not determine the pr oper outc ry witness “by

compar ing the 3explaining in any discernible ma

nner the alleg ed off

ense a nd how, when, and wher e appe llant touched he r”; subseque nt statement that provided suc h details was c hild’s “outcry”). The State c ontends that Warren waived the outcry issue based on his silenc e when the trial 4 court a nnounced that “there is no objection from the defe nse as to whether or not this witness was the outcry

witness.” We rea ch the mer its, however, be cause Warren later re -urg ed his objection during Be rre ra’ s testimony , claiming it violate d article 38.072 and his due proc ess rig hts, and he obtained an a dverse ruling

. See Te x. R. A pp . P. 33 .1 ; Ro sa s v. S

tat e , 7 6 S. W. 3 d

7 7 1 , 7 7 6

- 7 7 ( T e x. App.—Houston [1st Dist.] 2002, no pet.). 10 state me nts the c hil d g a ve to d if fe re nt i nd ivi du a ls a

nd the n d e c idi ngwh ic h p e rs on re c e ive d th e mos t detailed state ment about the off ense.” Broderick, 35 S.W .3d at 73. A trial court has broad discretion in de termining the admissibilit y of evide nce, a

nd its decisions on such matters will be upheld a bsent a c lear abuse of discretion. Ga rc ia , 792 S.W .2d at 92. An abuse of di scre tion will not be found unless the court’s decision was outside the zone of
rea sonable disag ree ment. W est v . S tat e , 1 21 S.W.3d 95 , 100 ( Te x. Ap p. —F or t Wor th 2 00 3, pe t. ref ’d). We must uphold the evidentiary ruling as long as it is reasona bly supported by the re cord a nd is corre ct under

any theory of applica

ble law. Id

. 4 He re , A.W. te sti fi e d tha t she ini tia lly tol d he r mothe r that War re n h a d a sk e d h e r t o perf orm the ac t she did with Andy at school, but her mother just cried, and no f

urther de tails were discussed. Ang ela’ s testimony corr oborate d this. S he testified that she asked A .W. if any one had “messed w ith her sexually ” and if it was “Doug las,” a

nd A.W. responded “ y es” a nd convey ed what W arren ha d r e qu e ste d. A. W.’ s st a te me nt t o h e r m oth e r d id n ot c on fi rm that sh e ha d a c tua lly perf or me d th e a c t Warr e n r e qu e ste d, muc h le ss d id i t pr ov ide any de ta ils a bo ut h owthe of

fe ns e
oc c ur re d or ab ou t whe n, wh e re , an d how many tim e s su c h a n in c ide nt h a d o c c ur

re d b e tw e e n th e m. On t his r e c o r d , w e h o ld

th a t t h e tr ia l c o u rt’ s d e te r

mi n a ti o nth a t A
. W. c o n v e y e d o n ly a “g ener al11

allusion” of abuse to her mother was within the zone of re asonable disag ree ment. See id. ; Monreal

v . S tat e , 2006 Tex. App. L EXI S 773, at *25-26 (Tex. A pp.—Houston [14t h Dist.] J an. 31, 2006, no pet. h.) (me m. op.) (initial alleg ation was “ g ener al allusion” whe re it provided no information about

“ ti me , p la c e , an d

c ir c u ms ta

n c e s s u r r o u n d in g th e a

b u s e ” )

. T h e r e c o r d

a ls o d e mo n s tr a te s th a t A
. W. fi rs t de sc ri be d th e of

fe ns e in a dis c e rn ibl e mann e r t o Be rr e ra . He nc e , the tr ia l court did no t a bu se its discretion in concluding that Be rre ra w as the prope r outcry witness. Ga rc ia , 792 S.W .2d at 91. Fur ther, this case does not prese nt a sce nario in which the t ri al court e rre d by permitting outc ry

testimony

from multiple witnesses. See H ernandez , 97 3 S.W. 2d a t 78 9. Th e Sta te confine d its ex amination of Ang ela to what s h e as k ed A.W., and Warren voluntar ily elicited her testimony about A.W.’s response s after he wa s awa

re of the trial cour

t’s ruling that Be rre ra w as the pr o p e r o u tc r

y w it n e s s . A n d , b e f

o r e Wa r r e n e li c it e d A n g e la ’ s te s ti mo n y , h e w a s w ar n e d that he should not do so in an “attempt[] to confuse who the true outcry witness is” beca use that issue had

a lr e a dy be e n r ule d o n. Con se qu e ntl y , Warr e n’ s c omp la int that B e r re ra ’s te sti mony

wa s in a dmi ssi ble “bolstering ” in violation of hi s due process rights is without merit. Se e Br igg s v . S tat e , 789 S.W .2d 918, 923-24 (Te x . Crim. App. 1990). Warre n’s first issue is overr uled.
Ineff ect ive Assistance Warren’ s second, third, and fourth is sues challeng e his conviction on the g round that he wa s de nie d his Sixth Am e ndme nt ri g ht to e ff e c tiv e a ssist ance o f coun se l. The standa rd
announce d in Strickland v. W ashington , 466 U.S. 668, 694 (1984) , g overns whether W arr en satisfied h is b u r d e nto p r o v e th a t h is c o u n s e l’ s a s s is ta n c e w a s in e f

f e c tive. Se e He rn an de

z v . S tat e , 988 S.W .2d 770, 770 (Tex. Crim. App. 19 99) ( Strickland applies to alleg ed inef fec tiveness at12

p u n i s h m en tas we l l as gu i l t/ i n n o ce n ce ; o v erru l i n g Ex pa rteDu ffy , 6 07 S.W. 2d

50 7, 51 6 ( Te x. Cr im. App. 1980)). Pursuant to Strickland , Warren must de monstrate that (1) his c ounsel’s per formanc e was de ficient, i.e. , it fell below an o b j ec t i v e s tandar d of re asonable ness, and ( 2) Warre n was prejudice d beca

use a r easona

ble proba bility exis ts that, but fo r t h e d eficient perf ormanc e, the
ou tc ome of his tr ia l wou ld have be e n dif fe re nt. 46 6 U.S. a t 687- 88 , 6 94 ; Ex pa rteCas h , 178 S.W .3d 816, 818 (Tex. Crim. App. 2005).

We reviewcounsel’s r epre sentation in i ts totalit y , rathe r than a s isolated acts or omi ssi o n s , an d w e e v a l u a t e t h e p e r f o r m an c e f r o m c o u n s e l ’ s p e r s p e c t i v e a t t r i a l , r a t h e r t ha n in hindsight. Sta

ffo rd v . S tat e , 8 13 S.W. 2d

50 3, 50 6 ( Te x. Cr im. Ap p. 19 91 ); W ilk e rso n v . S tat e , 726 S.W .2d 542, 548 (Tex. Crim. App. 1986). Fur ther, we indulge a st rong presumption that counsel’s acts a nd omissions wer e re asonable and part of a sound trial strateg y , and itis the appellant’s bur den to overc ome t hat presumption with a pre pondera nce of the evidenc e. J

ac k so n v . S tat e , 877 S.W .2d 76 8, 77 1 ( Te x. Cr im. Ap p. 19 94 ); M o o r e v . S tate , 694 S.W .2d 528, 531 (Tex. Crim. App. 1985). O u r r e v i e w i s h i g h l y d e f

e r e n t i a l t o c o u n s e l , an d w e w i l l n o t s p e c u l a t e a b o u tc o u n s e l ’ s t r i a l s t r a t e g y. Bo ne v . S tat e , 77 S.W.3 d 828 , 8 33 (T e x. Cr im. Ap p. 20 02 ); Ma y hu e v . S tat e , 969 S.W .2d 503, 511 (T e x . Ap p . —

Au s t i n1 9 9 8 , n o p et
. ) ( ci t i n g Jack son , 877 S.W .2d at 771). The appellant, howe ver, may preva il by

providing a re cord that affir matively demonstrates c ounsel’s per formanc e wa s not based on sound strateg y . Ma lle tt v . S tat e , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001); Mayhue , 969 S.W. 2d a t 51 1. I f t

he a pp e llate re c or d is sil e nt reg ard ingthe re a so ns fo r c ouns e l’ s c on du c t—a s it is in most case s—then it is ins ufficie nt t o o v ercome the pre sumption t hat counse l followed aProbation is now termed “ community supervision.” See Te x. Cod e Cr im. Pr oc . A nn . a rt
. 5 42.12, § 4 (West Supp. 2005). Although Rec er

inv olv e s c ouns e l’ s dec isi on to el e c t the jud g e rathe r tha n the jur y to a sse ss 6 punishment, we find it analog ous beca use the unde rlying c halleng e is that counsel misunderstood the l aw on se eking probation. Se e Pe na -M ota v . S tat e , 986 S.W .2d 341, 348 (Tex. App.—Waco 1 9 9 9 , n o p et
. ) ( ap p l y i n g Rec er to determine if c ounsel’s enc ourag ement to pl ead not guilty , rathe r than see k community

supervision, was inef

fec tive assistance ). 13 leg itimate strateg y . Ton g v. Sta te , 2 5 S. W.3 d 7 07 , 7 14 (T e x. Cr im. Ap p. 20 00 ); Tho mp so n v . S tat e , 9 S.W .3d 808, 813-14 (Te x . Crim. App. 1999).
Failu re to File Sw orn Moti on for Probation

Warren c ontends in his second i s s u e th a t h e w a s d e n ie d

e ffe ctive assistanc e of c ounsel due to his attorney ’s failure to file a motion for probation, thereby depriving the jury

of the option to rec ommend probation. See Tex. Code Crim. P roc. A nn. art. 42.12, § 3( a) ( West 1979) (upon defe ndant’s filing of sworn moti on demonstrating that he is elig ible for pr obation beca use he ha s no prior fe lony

convictions, jury

may rec ommend probation if sente ncing defe ndan t t o l ess than ten y ear s). 5 To show that counse l’s failure to file a motion for proba tion constitut ed inef

fec tive assistance , the appe llant must establish t hat (1) he was e ligible f or probation, (2) counsel’s de cision was not par

t of a sound trial strateg y , (3) the a ppellant’s dec ision to not seek pr obation was ba sed
on c ouns e l’ s e rr on e ou s a dv ic e , a nd (4 ) t he a pp e lla nt w ou ld h a ve ma de a di fferen t dec isi on if his counsel had corr ectly

informed him of the la

w. See State v. Re cer , 8 1 5 S. W. 2 d 7 3 0 , 7 3 1

- 3 2 ( T e x. Crim. App. 1991). 6Warren states in his brief that “counse l must have felt there was a tactica l rea son for not 7 filing a motion for probation.” H e asser ts only that, despite such a strateg y , “[o] ne ca

n only imag ine th at Ap p el l ant was confused.” His brief pose s the questions “[i] s it possi ble that Appellant wa s [mis]l e d” and

“ [w]a s App e lla

nt u nd e r t he [wr on g ] i mpr e ssi on ? ” War re n c on c e de s th a t “ [t]he re is no dir e c t evi de nc e to thi s ef fe c t,” bu t c la ims the re c or d “ su g g e sts ” tha t c ouns e l po or ly

inf or me d h im of the law . This is nothi ng but pure c onjecture and spec ulation, which is not enoug h for a defe ndant to show that counsel wa s deficie nt or that his c onduct had a prejudicia l effe ct on the outcome of the p ro ce ed i n g. Ex

pa rteCas h , 178 S.W .3d 816, 818-19 (Tex. Crim. App. 2005). Any alleg ation of i n ef fe ct i v en es s must be firmly rooted in the re cord. Tho mp so n v . S tate , 9 S. W. 3 d

8 0 8 , 8 1 3 ( T e x. Crim. App. 1999). 14

Her e, althoug h it is undi sputed that Warre n was e ligible f or probation, W arr en has not demonstrated the r emaining three Rec er elements. First, it appea rs that the attorne y ’s dec ision to not file a probation moti on was pa rt of a trial strateg y to unequivocally urg e Warre n’s innocenc e. Start inga t vo ir

dir e , Warr e n’ s cou

ns e l urg e d tha t Warr e n w a s “ no t a sk ingy ou fo r p ro batio n” be c a

us e he wa s “asking to be found not g uilty .” Counsel ca rried this strate g y

into his closing ar g ument at g uilt/i nnocenc e by urg ing, “Not g uilty

. That is the prope r ver dict.” Also, Warre n’s counse l did not contest the prose cutor’s state ment that the decision to not file an application for pr obation had bee n a “stra teg y decision betwe en [defense counsel] and his client” fr om the beg inning of trial. Second, the r ecor d demonstrates that Warren made a per s onal dec ision to not seek probation. B efor e sente ncing , the trial judg e aske d, “Mr. Warr en, y ou rea l i z e fr om the very beg inning of

the trial in this cause, you made the de cision, and y our attorney stated y our dec ision at that time, not to f

ile an application for probation in this case ; is that corre ct? ” Warre n responde d, “Ye s y our honor.” Warren has not demonstrated that his decision was based on e rrone ous advice or that his decision would have been dif fer ent but for suc h advice

. See J ac k so n v . S tat e , 766 S.W .2d 7Th e War ren fam ily

c la ime d th a t, b a se d o n e ve nts su c h a s th e on e wi th A nd y a t sc ho ol, 8 A. W. h a d d e mon str a te d h e r “ se xua l natur e .” Thus , o ut o f f e ar t hat W arr e n w ou ld b e wr on g ly a c c u s e d o f a

b u s e , h is f

a mi ly ma d e s u r e h e w a s n o t a lo n e w it h A
. W. T h e y a d mi tte d that simil ar prec autions wer e not imposed for a ny other male members of

the family

but claimed that this was beca use Warre n was the young est male who w as not marr ied. 15 50 4, 50 9-1 1 (Tex . Cr im. Ap p. 19 85 ); Ra me r v . S tat e , 714 S.W .2d 44, 47-48 (Te x . App.—Dallas 1986, pet. re f’d)

.

Be cause the dec ision to not file a swor n motion for pro b at i o n wa s part of a trial strateg y ag ree d t o b y W arr en, and be cause Warren of fer ed no proof

that his counsel either

m i s u n d e r s t o o d t h e l aw o f p r o b a t i o no r

m i s i n f o r m e d h i ma b o u ti t , W ar

r e nh a s f a i l e d t o p r o v e b y a pr e po nd eran c e of

the e vid e nc e in t

his dir e c t a

pp e a l e ith e r t

hat hi s c ouns e l’ s p e rf

or manc e on thi s matter w a s d e f

ic ie n t o r th a t, b u t f

o r th is c o n d

u c t, th e o u tc o me o f h is tr ia l w o u ld li k e ly have be en more fa vorable

. See Strick

land , 466 U.S. at 688. Warren’ s second issue is over ruled. Presentation of Mit

igatin g Evidence Warre n c o n te n d s in h is th ir d is s u e th a t h e w a s d e p r iv e d o f e f f e c ti v e a s s is tance of
c o u n s e l b e c a

u s e h is a tt o r

n e y f a il e d to p r e s e n t m it ig a ti n g e v id e n c e to th e ju r y an d f a il e d to e mp h a s iz e such evide nce dur ing his c losing a rg ument at the punishment phase. We disag ree . The re cord r efle cts that Warre n’s counse l repeat ed l y questioned witnesses a

bout War re n’ s la c k o f o pp or

tun ity to m ole st A .W. , g ive n th a t se ve ra l f a mil y me mbe rs we re in c los e proxi mity when the a

buse alleg edly

occur red a nd that prec autions were t ak en s o that Warren a nd A.W. were never

alone. Also, Warren’ s counsel c al l ed W ar ren’ s sister, fathe r, g irlfriend, a nd a 8 close fa mily friend to testify

on W arren’s be half. Thr oug h these witnesse s, Warren’ s counsel16

presen t ed mi tigating e vidence relating to Warre n’s lack of opportunity , lack of

motive, and g ood char acte r. His counsel emphasized all of this e vidence and challeng ed the cre dibilit y of the State’s
e vid e nc e duri nghis c los ingargume nt at g uil t/i nn oc e nc e . Th e n, duri ng the c los ing of punis hme nt, Warren’ s counsel explained that Warre n had no cr iminal hist o ry , had a suppor tive family

who be lie ve d in his inno c e nc e , an d ha d not be e n “f or c e fu l” tow ard A. W. He ur g e d th e jur y to t a ke thi s mit ig a tin g e vid e nc e int o c on sid e ratio n a nd se nte nc e War

re n to the statut or

y min imum of f

ive y e a rs . Although War

ren’ s counsel did not prese nt new evid en ce dur ing the punishment ph a se , n e ith e r d id t

he State , a

nd the re c or d is sile nt as to any re a so n for thi s. We w ill no t sp e c ulate about such strateg y ; it is Warren’ s b u rden to provide aff irmative proof

of def icient per formanc e. Bone , 77 S.W .3d at 833. Warren has not informed us of any available mitigating evidenc e that wa s not arg ued or a

ny supporting w itness who was not called, and we cannot e x pect c ounsel to prese nt nonexis tent evidenc e or to c all nonexis tent witnesses. F urther, g iven that the jury sentenc ed Warre n to only nine y ear s, far less than urg ed by the State, it doe s not a ppear that counsel’s de cision to not introduce a dditional evidence at punishment was pre judicial to Warren. See Hernande z , 988 S.W .2d at 772. Warre n’s third issue is overrule d. General Ineffe ctive Assistance

Inh i s f i n a l i s s u e , W ar

r e na s s e rt s t h a th i s c o u n s e l ’ s r e p r e s e n t a t i o n , t a k e ni ni t s e n t i r e t y, fell below a

n objective stan d ar d of prof essional leg al servic es. As support for this claim, W arr en contends that his counse l “did not have a g ood g rasp of the fa cts,” a nd “ofte n seeme d confuse d . . .

and un a ble

. . . to purs ue imp or

tant i ssu e s. ” Spe c if

ic a lly , War

re n p oin ts t o th e fo llo wi ngc on du c t: (1) c ounsel’s fa ilure to e ffe ctively cross-e x amine both Ang ela ( A.W.’s mother) and Ma rk (Warr en’sF or ins tanc e , on e e xamp le c ite d b y War re n is that hi s c ouns e l a c c ide ntl y a dd re sse d A ng e la 9 by her da ug hter’s na

me, which a lso beg ins with an “A” and sounds similar. We w ill not hold such minor, inconsequential mistakes to re nder c ounsel’s assistance ineffe ctive. 17 brother) , and (2) counsel’s f ailure t o seek a

continuance when subpoe naed CPS recor ds were not timely produce d. We have r e v ie w e d th e r e c o r d in it s e n ti r e ty an d h a v e d e te r mi n e d th a t it d o e s not support Warren’ s cl ai m o f gener al def iciency by his counsel. Over all, his counsel appe are d to be well-a war e of the rele vant fac ts a nd provided an apt defe nse, using the appropr iate rule s of proc edure and evide nce. A ny

isolated misstatement or tempor ar y moment of confusion is not outside the bounds of rea sonable leg al service and is insufficient to deem his counse l’s assistance ineffe ctive. 9 See W ilkerson , 726 S.W .2d at 548 (inef fec tive assistance will not be judge d on counsel’s is olated acts or omissions).

Mo re ov e r, loo kin g sp e c if ic a lly a t Warr e n’ s c ouns e l’ s c ro ss- e xami natio n o f A ng e la and Mar k, we c annot say

that his perfor

mance fell below the rea sonable standa rd. First, he elicited t es t imony from Ang ela that he later used at closing to a rg ue that she had questioned A.W. in a leadingfashion and, thus, A.W.’s allegations wer e not cr edible. Warre n contends that his counse l should have pursued Ang ela’ s statement that she “ had re asons” to believe , befor e questioning A.W., that A.W.’s father was the perpe trator. Howeve r, the State immediately approa ched the bench a

nd ob je c te d th a t A ng e la ’s re sp on se wa s b a se d o n h ears ay . Th e c ourt ins tr uc te d Warr e n’ s c ouns e l to

narr ow the question to eliminate hearsay testimony , and counsel complied by asking Ang ela if she had any “per sonal knowledg e” that would lead her to suspect A.W.’s fathe r. When she responde dThe issue o f whether Mar k could be impea ched on his c riminal history was discussed 10 outside the jury ’s pre sence . Mark a dmi t t ed t o v arious convictions for which he had complete d probation. Warre n’s counse l ag ree d that these we re not impea chable offe nses. See Tex. R. Evi d. 609(c) . The pa

rties ag ree d that the onl y conviction on which Mark could be impea ched w as a “ $10 fi ne on the Cla ss C iss ua

nc e of a ba d ch e c k ch arg e ,” and War re n’ s cou ns e l sai d h e wa s “ no t r e a lly worrie d about” impea ching Mark on such a mi nor off ense. Counsel stated that the only crime he was interested in f

or impeac hment purposes wa s Mark’s “ pending char g e, bec ause it g oes to his state of mind, his bias to c urry favor with the State.” The court a g ree d that a witness could be impeache d on a pendingcase . When the jury returne d, the State conclude d its ex amination of Mar k by asking whether he had a “pending violation of [a] protec tive order case ,” and Ma

rk said “y es.” Warr en’s counsel did not ask Mar

k any thing f urther a bout the pending char g e, but coun s el d i d ar g ue at the closing of guilt/innocence that Mark’ s pending char g e could provide him with a motive to lie and testify in favor of

the State. 18 in t he ne g a tiv e , c ouns e l mo ve d o n, a nd we c ann ot s pe c ulate a s to his re a so ns fo r n ot p ur su ingit further

. See Tong , 25 S.W .3d at 714.

Second, in cr oss-examining Mark, Warren’ s counsel cast doubt on his testim ony by demonstrating that Mark ha d never ment ioned his alleg ed discussion with Warren until the day befor e trial, that Mar

k permitted his children to be around Warr en eve n afte r lea rning that Warren had inappr opriate c ontact with A.W., and that Mark’ s memory was affe cted by his use of marijuana. Counsel also emphasized this evidenc e at c losing. Warr en conte nds that his counsel was de ficient in impeachingMark f

or his prior convic tions. A revie w of the re cord, how ever , demonstrates that his pe rfor mance was re asonable

. Fur thermore , in the fac e of a

rec ord that is silent as to counsel’s 10

rea sons for his dec isions, W arr en has not ove rcome the pre sumption t hat his counsel’s c onduct was based on sound strateg y . Se e id

.

F ina lly , Warr e n’ s c on te nti on a bo ut t he CPS r e c or ds is a lso ins uf fi c ie nt t o o ve rc ome the pre sumption t hat his counsel’s a ssistance wa s eff ective. Pr i o r to voir dire, Warre n’s counse l noted that the State had failed to pr oduce the CPS rec ords, which had been subpoe naed. H oweve r,19

he said that the Stat e h ad gi v en h im copies, and his conc ern a ppear ed to be only

that copies be produce d as par

t of the appe llate re cord. The St at e as s u re d the cour t that the rec ords would be produce d befor e the c onclus i o n of trial, and the y wer e. Ag ain, Warre n has not established ineffe ctive assistanc e base d on his counsel’s dec ision to not seek a continuance beca use the re cord ref lects nothing about his counsel’s strateg y reg ardingthis decision. Id

. Additionally , as to ea ch of the above acts and omissions, W arr en off ers no pr oof that he wa s p re

ju di ced by

any of the m. H is b ri e f a sse rt s me re ly that th e c umu la tiv e e ff

e c t of the se decisions “quite possibly aff ect[ed] the outcome” of

his t ri al. An appe llant’s speculation and conjec ture, howeve r, does not pr ovide sufficie nt pr oof on which to de termine that he was pre judiced by his counsel’s re prese ntation. Ex pa rteCas h , 1 78 S.W. 3d a t 81 8- 19 ; Thompson , 9 S.W .3d at 813. We t he re fo re ho ld t

hat Warr e n ha s fa ile d to dem on str a te by a pr e po nd e ra nc e of the e vid e nc e that hi s counsel’s r epre sentation, in its entirety , was inef fec tive. Warren’ s fourth issue is overr uled.
DOUBLE JE OP ARDY Our review of the rec ord discloses unassig ned er ror that should be a ddresse d in the interest of justice. Se e W

rig ht v . S tat e , 9 81 S.W. 2d

19 7, 19 9 n .2 (T e x. Cr im. Ap p. 19 98 ) ( a pp e llate
cour t may , in its di scre tion, consider unassig ned er ror) . I t is clearly

appar ent on the fa ce of

the

r e c o r d t h a tW ar r e n ’ s c o n v i c t i o n s o na l l t h r e e c o u n t s o f t h e i n d i c t m e n tc o n s t i tu t e d o u b l e j e o p a r dy. Se e Go nz ale

z v . S tat e , 8 S.W .3d 640, 643 (Tex. Crim. App. 2000) (explaining whe n double jeopar dy

may be ra ise d f

or fi rs t ti me on

a pp e a l) ; Du v all

v . S tat e , 5 9 S. W.3 d 7 73 , 7 77 (Tex . App .— Au sti n 2001, pet. re f’d ( same))

.20 The F ifth Amendment doub l e j eo pardy clause protec ts ag ainst prosec ution for the
same of fe ns e a ft e r a c on vic tio n or an a c qu itt a l, and a g a ins t mul tip le punis hme nts for th e same offe nse. North C

arolina v. Pearce , 395 U.S. 711, 717 (1969). The c lause is enf orce able a g ainst the states throug h the Four

teenth Amendme nt. Benton v. M aryland , 3 95 U. S. 7 84 , 7 87 (1 96 9) . In th is
cause , there is a multipl e-punishments violation.

The re cord c ontains evidenc e of only one act that can suppor

t a conviction under

any of the thr e e c ounts of

the ind ic tme nt. On

thi s one oc c a sio n, War

re n p e ne tr a te d A .W. ’s mouth w ith his penis. During their closing arguments to the jury , both pr osecutors stated that this conduct alone jus tif ie d Warr e n’ s c on vic tio n o n e a c h c ount o f t he ind ic tme nt. When the same c onduct violates two distinct statutory provisions, the first step in the double jeopar dy

analy sis is t o deter

mine whether

the leg islature intended that eac h v i o l at i o n be a separ ate of

fense

. Garrett v. United States , 471 U. S. 773 , 778 (1 98 5) . T he c ourt of c ri min a l a

pp e a ls has held that, a lthough the leg islature intended ha rsh pena lties for sexual abuse of c hildren, it did not intend to authorize “stop-ac tion prosec utions.” Pa tte rso n v . S tat e , 1 52 S.W. 3d

88 , 9 2 ( Te x. Cr im. Ap p. 20 04 ). Th a t is , a

de fe nd ant c ann ot b e c on vic te d f or a c omp le te d a c t of se xua l a ssa ult and a lso for c onduct that is demonstrably part of the commission of the completed a ct. Id

. Sex ual contac t or exposure that occur s in the course of an act of sexual penetration is subsumed in the completed ac t. Id .; se e Ba rn es v . S tat e , 165 S.W. 3d 75 , 88 (T e x. Ap p. —A us tin 2005, no pet.). A conviction for both the completed act of penetr ation and for the sexual contact or exposure incident to the pene tration con s t i t u t es double jeopa rdy

. See B arnes , 165 S.W .3d at 88 (convic tions for sexual a ssault by penetr ation and by g enital-to-g enital contac t based on sing le ac t21

of pe ne tr a tio n c on sti tut e d d ou ble je op ard

y ); Pa tte rso n v . S

tat e , 96 S. W. 3 d

4 2 7 , 4 3 2

- 3 3 ( T e x. App.—Aus t i n 2 0 0 2 ), aff’d , 152 S.W .3d at 92 (c onvictions for sexual assault by penetr ation and ind e c e nc y by c on ta c t ba se d o n s ing le a c t of pe ne tr a tio n c on sti tut e d dou ble je op ard

y ). I n th e c a

us e now bef ore us, the c onstitut ional g uara ntee a g ainst double jeopar dy was violated w hen Warre n was convicted f

or pene trating A.W.’s mouth with hi s penis and also for the contac t and exposure that was incident to and subsumed within that one ac t of pene tration.

The prope r re medy

when a defe ndant is c onvicted of two of fense s in violation of the double jeopar dy

clause is to set aside the convic tion for t h e o ff en s e car rying the less serious punishment. Lan de rs v . S tat e , 95 7 S.W. 2d

55 8, 56 0 ( Te x. Cr im. Ap p. 19 97 ). Ac c or din g ly , w e wi ll
reve rse Warr en’s c onvictions for indec ency with a child.
CO NC LU SION Th e jud g me nts of

c on vic tio n f

or ind e c e nc y

w i t h a c h i l d b y c o nt a c t and

ind e c e nc y

wi th a child by exposure are reve rsed a

nd those ca

uses ar e dismissed. The judg m en t o f co n v i ct ion for ag g ravated sexual assault is affirme d.

W. Kenneth L aw, Chief Justice B e fo re Chi e f Jus tic e L aw, Justi c e s B . A . Sm ith and Pury ear Affir med in Part; Reverse d and Dismissed in Part Filed: Mar ch 2, 2006 Do No t Pu

bli sh