NUMBERS

13-11-00709-CR

13-11-00710-CR

13-11-00711-CR

13-11-00712-CR

13-11-00713-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ESTEBAN TREVINO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 130th District Court of 

Matagorda County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Perkes

Memorandum Opinion by Justice Garza

A jury convicted appellant, Esteban Trevino, of seven offenses related to the 

sexual abuse of his granddaughters: two counts of aggravated sexual assault, a firstdegree felony; two counts of attempted aggravated sexual assault, a second-degree 
2

felony1; and three counts of indecency with a child, a second-degree felony.2 See TEX.

PENAL CODE ANN. § 21.11 (West 2011), § 22.021 (West Supp. 2011). The jury 

sentenced appellant to life imprisonment for the aggravated sexual assault counts and 

twenty years’ imprisonment for each of the second-degree felonies.3 Appellant now 

challenges his convictions by three issues. We affirm.

I. BACKGROUND

Three children were involved in the allegations against appellant: I.M., M.E.T., 

and S.Z. I.M. and M.E.T., who were eight and nine years of age respectively at the time 

of the alleged abuse, are the daughters of appellant’s daughter Sarah. S.Z., who was 

seven years of age at the time of the alleged abuse, is the daughter of appellant’s other 

daughter Linda.

Appellant’s son, Stephen, testified at trial that his nieces I.M. and M.E.T. came 

with their mother Sarah to visit him at his home in San Antonio in July of 2009. When 

Stephen asked the girls how their grandfather was doing, I.M. and M.E.T. replied: 

“We’re not allowed to see him no more.” When he asked why not, they stated: “Mom 

won’t let us go see him no more . . . . He pulled out his private on us and he showed us 

his private.” Stephen waited until the girls left with Sarah; he then called Sarah and 

advised her what the girls had said. Stephen told Sarah to contact police in Palacios, 

Texas, where appellant lived at the time. He told Sarah that, if she did not go to the 

police, he “was going to put a complaint with CPS and get custody.” Stephen also 

 

1 One count of aggravated sexual assault and one count of attempted aggravated sexual assault 

are appealed in appellate cause number 13-11-00709-CR. The other count of aggravated sexual assault 

and the other count of attempted aggravated sexual assault are appealed in appellate cause number 13-

11-00710-CR.

2

Appellate cause numbers 13-11-00711-CR, 13-11-00712-CR, and 13-11-00713-CR.

3

The punishments for the second-degree felonies were ordered to run concurrently. The 

punishments for the aggravated sexual assault convictions were ordered to run consecutively.
3

called Juan Morales, I.M.’s father, and told him what the girls said.

Sarah testified that, on or about July 1, 2009, Linda was about to give birth and 

so Linda sent S.Z. to stay with appellant in Palacios. Initially, I.M. and M.E.T. did not 

want to go along, but they eventually decided to accompany S.Z. The children stayed 

with appellant for one night, and Sarah then went to Palacios to pick them up the next 

day. When they came home, everything appeared normal. However, two weeks later, 

when the family was returning from their visit to San Antonio, Sarah received 

information from both Linda and Juan, her ex-husband, regarding the accusations 

against appellant.

Sarah asked her children if anything had happened to them at their grandfather’s 

house. The children repeatedly denied that anything had happened. However, on 

August 17, 2009, they reported that appellant “has touched them, that he has put his 

thing in between—in between their legs, rubbing their legs with his middle part.” Sarah 

then took her children to the police department in Palacios and made a sexual abuse 

complaint against her father. According to Sarah, Linda didn’t want anything to happen 

to appellant and was angry that Sarah made the report to police. Sarah suggested that 

the children “were scared to say anything” at first “[b]ecause the last time I talked to my 

kids about any—anybody touching them in an inappropriate way, I [told them I] would 

kill ‘em. That’s why my kids was [sic] scared to tell me.”

Susan Maxwell, an investigator with the Matagorda County District Attorney’s 

Office, testified that she interviewed I.M. in October 2009. According to Maxwell, I.M. 

reported that appellant “put his middle part in her middle part” and “put his finger in her 

middle part and that it hurt.” I.M. reported that this happened at appellant’s house in 

Palacios when Linda had gone to the hospital to have her baby. When Maxwell asked 
4

I.M. to describe appellant’s private part, I.M. stated that it was “hard and hairy” and that 

“some either yucky or nasty yellow stuff came out and that she had seen it on the other 

two girls’ bod[ies].”

S.Z. testified that she, along with I.M. and M.E.T., went to stay with appellant 

while her mother was having a baby. The girls slept on the floor in appellant’s 

bedroom.4 S.Z. stated that, after the girls had taken a shower, appellant “told us to put 

our hands on his middle” and then “just grabbed our hands and just put it on it.” S.Z. 

recalled “yellow gushy stuff” coming out of his “middle part.” S.Z. also stated that

appellant put his fingers in her “middle part.”

S.Z. testified that appellant “picked [S.Z.] up” and put her on the bed, and that 

“[t]he next thing when I woke up, my clothes were off.” She recalled that the other two 

girls “were trying to get my grandpa off of me, but they couldn’t because he was too 

heavy.” S.Z. agreed with the prosecutor that appellant was “on top of [her]” at that time. 

She was sure that appellant had “put his middle in [her] middle,” but she stated that this 

occurred after “anything came out of his middle.” S.Z. also noted that she was asleep at 

the time “he put his middle on [her] middle” and knew what had happened only because 

she felt pain in her “middle” and because her cousins M.E.T. and I.M. told her that 

appellant was on top of her.

S.Z. initially denied that appellant “ever ask[ed] you or ma[d]e you put your mouth 

on his private part”; however, she later conceded that “[h]e told us to put our mouth on 

his middle . . . . He just grabbed our heads. . . . Just made us put it on his middle.”

According to S.Z., appellant instructed her not to tell her mother what happened, 

and he told M.E.T. “not to tell your mom or else I’ll hurt you.” S.Z. stated that her 

 

4

Appellant shared the bedroom with his girlfriend. However, according to S.Z., appellant’s 

girlfriend did not sleep in the bedroom while the children were staying with them.
5

mother, Linda, told her that she did not have to talk about what happened if she did not 

want to.

I.M. testified that, when the girls were in appellant’s bedroom, “[h]e would like 

take off his clothes and then start touching us.” She stated that, while she was 

sleeping, appellant would remove her clothes and put her on the bed. He would then 

use his hand and his “middle” to touch “[her] belly and [her] leg,” and he did the same to 

the other girls. He would grab her hand and tell her to touch his “middle.” I.M. agreed 

with the prosecutor that appellant “would make [M.E.T. and S.Z.] put their mouth on his 

private.” When the prosecutor asked if appellant had “touch[ed] [her] up top,” I.M. 

stated: “He was trying to, but I told him to stop.” She also stated that appellant “[t]ried” 

to “put his middle part on [her] middle part” but that she told him not to, and he didn’t. 

I.M. testified that these acts occurred “[a] lot of times,” both in appellant’s bedroom and 

in a “motel” where he used to live. According to I.M., appellant “said if you tell anybody, 

you’re never going to see your mama again.”

M.E.T. testified that, when she was at appellant’s house during the time her aunt 

Linda was having a baby, appellant undressed and got into bed with her and her 

cousins. He then “got on top of [S.Z.].” He was “moving” rather than staying still. The 

girls tried to “pull him off” because they thought S.Z. was going to get hurt. M.E.T. 

agreed with the prosecutor that appellant had, in the past, tried to “do the same things 

with you.” M.E.T. testified that appellant made S.Z. and I.M. touch his “middle part” and 

that “white stuff” came out of his “middle.” According to M.E.T., appellant touched her 

leg “with his middle.”

More than two years after the events in question, the girls were taken for physical 

examinations by sexual assault nurse examiners (“SANE nurses”). The examinations 
6

revealed no visual injuries or indications of recent sexual activity.

Appellant was tried on four counts of aggravated sexual assault and three counts 

of indecency with a child. The jury found him guilty of two aggravated sexual assault 

counts5and all three indecency counts.6 It found appellant not guilty of the two other 

aggravated sexual assault counts but, with respect to each charge, found him guilty of 

the lesser-included offense of attempted aggravated sexual assault.7 Appellant filed a 

motion for new trial, which was denied. This appeal followed.

II. DISCUSSION

A. Admission of SANE Nurse Testimony

By his first issue, appellant contends that the trial court erred in admitting the 

testimony of the two SANE nurses, Leslie Kallus and Jennifer Mumphord, who 

conducted examinations of the alleged victims. In particular, appellant complains that 

the nurses were improperly permitted to recount details of the allegations made by the 

children during the examinations. At trial, defense counsel objected to the admission of 

Kallus’s testimony on the basis that it constituted improper “bolstering” of the children’s 

testimony. The prosecutor argued that the testimony was admissible because it was 

relevant and constituted an exception to the hearsay rule. See TEX. R. EVID. 803(4) 

(providing that “[s]tatements made for purposes of medical diagnosis or treatment and

describing medical history . . .” are not excluded by the hearsay rule). The trial court 

 

5

The two aggravated sexual assault convictions were for: (1) appellant intentionally or knowingly 

causing the penetration of S.Z.’s sexual organ by his sexual organ; and (2) appellant intentionally or 

knowingly causing I.M.’s sexual organ to contact his sexual organ. See TEX. PENAL CODE ANN. § 

22.021(a)(1)(B)(i), (a)(1)(B)(iii) (West Supp. 2011).

6

The three indecency with a child counts were for appellant intentionally or knowingly, with intent 

to arouse or gratify his sexual desire, causing each of the three victims to touch his genitals. See id. § 

21.11(a)(1), (c)(2) (West 2011).

7

The two attempted aggravated sexual assault convictions were for appellant attempting to 

intentionally or knowingly cause the penetration of the sexual organ of S.Z. and I.M., respectively, by his 

finger. See id. § 22.021(a)(1)(B)(i).
7

overruled defense counsel’s objection. On appeal, appellant argues that the testimony 

was inadmissible because it was irrelevant and constituted improper bolstering.

We review a trial court’s decision to admit evidence under an abuse of discretion 

standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). “If the trial 

court’s decision was within the bounds of reasonable disagreement, the appellate court 

should not disturb its ruling.” Id.

Appellant’s trial counsel did not object to the testimony on the basis of relevance. 

The issue of relevance has therefore not been preserved for our review. See TEX. R.

APP. P. 33.1. Even if the issue had been preserved, it would not be meritorious. 

Evidence is relevant if it has “any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it 

would be without the evidence.” TEX. R. EVID. 401. Evidence which is not relevant is 

inadmissible. TEX. R. EVID. 402. The testimony of the nurses as to the children’s 

accounts of abuse by their grandfather tended to make more probable the fact that the 

abuse actually took place. Accordingly, the evidence was relevant.

Appellant cites Salinas v. State, 166 S.W.3d 368, 371–72 (Tex. App.—Fort Worth 

2005, pet. ref’d), in which the Fort Worth Court of Appeals found that the trial court 

abused its discretion in admitting a doctor’s testimony that she had diagnosed sexual 

abuse based only on the medical history provided by the alleged child victim. But in the

case at bar, the SANE nurses did not make any diagnosis based on the accounts of the 

children. Instead, the nurses testified that, based on the results of the physical 

examinations, they could not confirm or negate the children’s allegations.

Appellant further cites Yount v. State, 872 S.W.2d 706, 711 n.8 (Tex. Crim. App. 

1993), in which the Texas Court of Criminal Appeals noted that “[v]irtually every 
8

jurisdiction which has addressed, in the context of a child sexual assault case, the 

admissibility of direct testimony as to the truthfulness of the child complainant, has held 

that such direct testimony is inadmissible.” However, neither SANE nurse gave any 

opinion about the truthfulness of the alleged victims; on the contrary, as noted, they 

stated affirmatively that the physical examinations were inconclusive and that they could 

not confirm or negate the allegations of abuse.

Appellant next claims that the nurses’ testimony regarding the children’s 

accusations constituted improper “bolstering” of the children’s testimony.

8 However, we

recently held in an unpublished memorandum opinion that “‘bolstering’ is no longer a 

valid objection where testimony is not deemed to be hearsay.” Valencia v. State, No. 

13-10-00201-CR, 2011 Tex. App. LEXIS 3815, at *17–18 (Tex. App.–Corpus Christi 

May 19, 2011, no pet.) (mem. op., not designated for publication) (citing Jones v. State, 

833 S.W.2d 634, 635 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d); White v. State, 

No. 01-98-00148-CR, 1999 Tex. App. LEXIS 5072, at *6 (Tex. App.—Houston [1st Dist.] 

July 8, 1999, no pet.) (mem. op., not designated for publication)). As noted, the 

challenged testimony falls under an exception to the hearsay rule. See TEX. R. EVID.

803(4). Accordingly, “bolstering” is not a cognizable objection in this instance. See

Valencia, 2011 Tex. App. LEXIS 3815, at *17–18.

Appellant’s first issue is overruled.

B. Ineffective Assistance of Counsel

Appellant contends by his second and third issues that his trial counsel was 

ineffective, depriving him of his right to a fair trial as guaranteed by the Sixth 

Amendment to the United States Constitution. See U.S. CONST. amend. VI.

 

8

Appellant notes that his main defensive theory at trial was that the children’s initial statements 

contradicted their later accusations of abuse. He alleges that the nurses’ testimony caused him to suffer 

harm because it lent additional credence to the children’s accusations.
9

1. Standard of Review and Applicable Law

To obtain a reversal of a conviction for ineffective assistance of counsel, a 

defendant must show that (1) counsel’s performance fell below an objective standard of 

reasonableness and (2) counsel’s deficient performance prejudiced the defense, 

resulting in an unreliable or fundamentally unfair outcome of the proceeding. Davis v. 

State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 

466 U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 

the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) 

(quoting Strickland, 466 U.S. at 687). The prejudice prong requires showing “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 248 (citing Strickland, 466 U.S. at 694). 

“A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. (citing Strickland, 466 U.S. at 694). “[E]ach case must be judged on its 

own unique facts.” Davis, 278 S.W.3d at 353.

The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999). Appellant must overcome the strong presumption that counsel’s conduct 

fell within the wide range of reasonable professional assistance and that his actions 

could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. 

State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing 

court will not second-guess legitimate tactical decisions made by trial counsel. State v. 

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (noting that, “unless there is a 

record sufficient to demonstrate that counsel’s conduct was not the product of a 
10

strategic or tactical decision, a reviewing court should presume that trial counsel’s 

performance was constitutionally adequate”). Counsel’s effectiveness is judged by the 

totality of the representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 

813; Jaynes, 216 S.W.3d at 851. An allegation of ineffectiveness must be firmly 

founded in the record, and the record must affirmatively demonstrate the alleged 

ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 

9 S.W.3d at 814 n.6.

2. Mumphord

By his second issue, appellant contends that his trial counsel was ineffective for 

failing to object to the testimony of SANE nurse Mumphord. However, there is nothing 

in the record9establishing that this could not have been “the product of a strategic or 

tactical decision” on the part of defense counsel. See Morales, 253 S.W.3d at 696. In 

particular, counsel could have declined to object to this testimony because it showed 

that there was no evidence of any physical injuries to S.Z. at the time of the 

Mumphord’s examination. Appellant notes that, though his trial counsel failed to object 

to Mumphord’s testimony, he did object to Kallus’s testimony. Appellant claims that 

“[t]here can be no legitimate strategy in objecting to Nurse Kallus’[s] testimony and not 

objecting to Nurse Mumphord’s testimony” because “[t]he objection to Nurse Mumphord 

would have been identical [to the objection to Kallus].” But even if we assume that 

counsel performed deficiently in this regard, appellant has not established that an 

objection to Mumphord’s testimony would have been sustained. See Ortiz v. State, 93 

S.W.3d 79, 93 (Tex. Crim. App. 2002) (stating that a claim of ineffective assistance 

based on failure to object to the admission of evidence must establish that the evidence 

 

9

The defense attorney who cross-examined Kallus testified at the motion for new trial hearing. 

However, the defense attorney who cross-examined Mumphord did not testify.
11

was inadmissible). Failure to make such an objection cannot, therefore, support a claim 

of ineffective assistance. See id. We overrule appellant’s second issue.

3. Expert Witness

By his third issue, appellant argues that his trial counsel “failed to conduct a 

meaningful investigation of the law and facts necessary to present a defense.” See 

Strickland, 466 U.S. at 690–91 (noting that “strategic choices made after thorough 

investigation of law and facts relevant to plausible options are virtually unchallengeable; 

and strategic choices made after less than complete investigation are reasonable 

precisely to the extent that reasonable professional judgments support the limitations on 

investigation”). In particular, appellant contends that counsel should have called an 

expert witness to present scientific literature regarding the potential for children to be 

manipulated by adults into giving false testimony.

Appellant’s brief cites several scholarly works which he believes could have been 

presented by an expert at trial and which would have been beneficial to his defense.10 

At the hearing on appellant’s motion for new trial, his trial counsel conceded that he was 

aware of many of these studies but did not consult with an expert regarding “the issue of 

contamination and motive for a child to bring a false allegation of sexual abuse.” Trial 

counsel acknowledged that, although “one of [his] trial strategies was to raise the issue 

of contamination,” he did not “have anyone explain to the jury how contamination works 

and how a parent or aunt can cause or contaminate the opinions or testimony of a 

child.”

 

10 The scholarly works referenced by appellant include an article that, according to appellant’s 

counsel, established that “a parent can influence [an eight-to-ten-year-old child] to make a false allegation 

of sexual abuse.” The works also included an article that, according to counsel, stated that “55 percent of 

child sexual abuse cases were either inconclusive findings or deemed not to be sexual abuse in the 

allegations.”
12

Appellant cites S.J.P. v. Thaler, in which the federal district court for the Northern 

District of Texas held that a sex abuse defendant had received constitutionally 

inadequate assistance from his trial counsel, in part because counsel failed “to consult 

with a health care expert, a psychiatrist or psychologist, on the subject of how to deal 

with the statements [the alleged child victim and her mother] were making against 

petitioner.” No. 4:09-CV-112-A, 2010 U.S. Dist. LEXIS 127904, at *73 (N.D. Tex. Dec. 

3, 2010). In that case, the accused contended, as appellant did in his trial, that the child 

complainant’s testimony was contaminated by the influence of an adult. The court held 

that:

any reasonable attorney handling petitioner’s defense would have retained 

an expert qualified by education and experience as a forensic psychologist 

or psychiatrist to assist in preparation of petitioner’s defense and to give 

testimony, as appropriate, on the mental status of [the mother] and [the 

child] and on the subject of [the mother]’s influence over [the child].

Id. at *87.

Appellant also cites Ex parte Ard, No. AP-75,704, 2009 Tex. Crim. App. Unpub. 

LEXIS 181 (Tex. Crim. App. Mar. 11, 2009) (not designated for publication) and Ex 

parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), two cases in which the Texas 

Court of Criminal Appeals vacated convictions on the basis of inadequate assistance of 

trial counsel. In Ard, the Court found that the record supported the trial court’s 

conclusion that defense counsel provided ineffective assistance by “fail[ing] to challenge 

the competency and credibility of the alleged victim, the lone witness testifying that a 

sexual assault had occurred, based on the scientific theory of memory implantation.” 

2009 Tex. Crim. App. Unpub. LEXIS 181, at *5, *18. In Briggs, the habeas corpus 

applicant argued that she had been wrongly convicted of causing the death of her twomonth-old son, and she contended that her trial counsel was deficient because he 
13

“deci[ded] not to fully investigate [the child victim’s] medical records or consult with 

experts until he had been paid an additional $2500–$7500 in expert fees.” 187 S.W.3d 

at 467. The Court held that counsel provided ineffective assistance in part because 

“[t]his was not a ‘strategic’ decision, it was an economic one.” Id. The Court stated: 

“Counsel is most assuredly not required to pay expert witness fees or the costs of 

investigation out of his own pocket, but a reasonably competent attorney—regardless of 

whether he is retained or appointed—must seek to advance his client’s best defense in 

a reasonably competent manner.” Id. (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985) 

(noting that, while the State need not “purchase for the indigent defendant all the

assistance that his wealthier counterparts might buy,” it must provide him “the basic 

tools” to present his defense within our adversarial system)). The Court held:

under these particular circumstances, the failure by applicant's attorney to 

take any steps to subpoena the treating doctors, withdraw from the case 

because applicant’s indigency prevented him from providing 

constitutionally effective assistance of counsel, or request state-funded 

expert assistance under Ake, constituted deficient performance.

Applicant’s trial counsel’s financial decision to do nothing about the 

obvious need to develop evidence concerning [the child’s] medical history 

did not reflect reasonable professional judgment. This was not a 

“strategic” decision made after a full investigation of the facts and law.

Id. at 469 (footnotes omitted).

Appellant argues that S.J.P., Ard, and Briggs compel reversal of his conviction. 

We disagree. S.J.P. is distinguishable because that court, in concluding that trial 

counsel’s assistance was deficient under Strickland, relied upon far more than just 

counsel’s failure to consult with a mental health expert. See Thompson, 9 S.W.3d at 

813 (noting that effectiveness is judged by the totality of counsel’s representation, not 

by isolated acts or omissions); Jaynes, 216 S.W.3d at 851 (same). Instead, the court 
14

noted the following additional deficiencies in counsel’s representation which were 

apparent from the record:

 “defense counsel were poorly prepared for cross-examination of any of the 

witnesses, and failed to conduct any effective cross-examination,” 2010 U.S. Dist. 

LEXIS 127904, at *56;

 “trial counsel made no effort to rebut [the mother]’s allegation that petitioner 

molested [the child] when she was twenty months old or to otherwise convince the 

jury that the incident did not happen,” id. at *51;

 defense counsel repeatedly “injected into the record by cross-examination of [the 

mother] and [the child] accusations of inappropriate or irrational conduct on the part 

of one or both of them, but when the questions were met with denials, defense 

counsel made no attempt to establish the falsity of the denials,” id. at *57;

 defense counsel failed to call several available witnesses “who would have been 

able to testify to facts that would have strengthened defense counsel’s theory that 

[the mother] was mentally unstable and had an inordinate influence on the thinking 

and conduct of [the child],” id. at *58–59;

 defense counsel offered as evidence letters and a journal authored by the child

which “served the interests of the prosecutor rather than petitioner by substantiating 

[the child]’s contentions of sexual abuse” and counsel “were unprepared to discredit 

the writings in any respect,” id. at *59; and

 “no one on the defense team interviewed any prospective witness prior to the trial.” 

Id. at *88.

Here, there is no allegation that trial counsel was unprepared to cross-examine 

witnesses, that counsel introduced evidence detrimental to appellant’s defense, or that 
15

counsel failed to interview prospective witnesses. Moreover, although appellant refers 

to scholarly works casting doubt on the veracity of child witness testimony, the record 

does not show that any particular expert witness was available to testify as to the 

reliability or scientific validity of those works or how they apply to appellant’s case. For 

these reasons, we do not believe that S.J.P. compels reversal in this case.

Ard is also distinguishable. In that case, the habeas corpus applicant established 

a record showing that an expert on the subject of memory implantation “was ready and 

able to explain how false memory may be implanted by repetitious suggestion” but that

trial counsel nevertheless

failed to adequately elicit testimony from the doctor that the theory is the 

subject of many treatises and is widely accepted by the scientific 

community, to explain how and why it can occur, and to enumerate those 

facts which, in his opinion, made the testimony of the alleged victim in the 

case suspect and unreliable.

2009 Tex. Crim. App. Unpub. LEXIS 181, at *5. Here, on the other hand, no expert 

testified at the hearing on appellant’s motion for new trial, and—despite appellant’s 

citations to various scholarly works—the record does not establish that any particular 

expert “was ready and able” to testify that the accusations of M.E.T., I.M., and S.Z. may 

have been false due to “implantation,” “contamination,” or other undue influence by 

adults. See Teixeira v. State, 89 S.W.3d 190, 194 (Tex. App.—Texarkana 2002, pet. 

ref’d) (holding that a Strickland challenge “is not sustainable” without “some showing in 

the record that an expert would have testified in a manner that would have benefitted” 

appellant, and stating that “[w]e are unwilling to take the position that an expert must be 

obtained in all sexual assault cases”); see also Garcia v. State, No. 13-11-00016-CR, 

2012 Tex. App. LEXIS 4369, at *12 (Tex. App.—Corpus Christi May 31, 2012, pet. ref’d)

(mem. op., not designated for publication).
16

Finally, in Briggs, the Court noted that medical records which were not presented 

at trial “by themselves raise considerable doubt as to the reliability of the original 

medical examiner’s conclusion that [the child’s] death was the result of homicide.” 187 

S.W.3d at 470. In particular, the medical records showed that the child victim suffered 

from a birth defect and that emergency-room personnel at the hospital where the child 

was treated “mistakenly inserted an endotracheal (oxygen) tube into his stomach 

instead of his lungs”—a finding which, when revealed, caused the Harris County Chief 

Medical Examiner to change the cause of death on the child’s death report from 

“homicide” to “undetermined.” Id. at 460. The Court noted that the “need to develop 

evidence concerning [the child]’s medical history” was “obvious” and that counsel’s

“financial decision to do nothing” to address that need “did not reflect reasonable 

professional judgment.” Id. at 469.

At the motion for new trial hearing, appellant’s substitute counsel asked trial 

counsel why he did not present any testimony, other than through cross-examination, as 

to the pertinent academic literature “that went to the heart of your strategies.” Counsel 

replied:

The problem that we had with that was—is that presenting that type of 

defense and strategy, we were very concerned that would open the door 

perhaps to [appellant’s] prior convictions for sexual assault[11] because the 

primary motive of the so-called money motive[12] was Sarah and Linda. 

So, any—any issue regarding opening the door to Sarah or Linda might 

open the door to the prior convictions. So, we were very sensitive about 

that given the facts of the prior convictions. If that were to come out in this 

trial—and I understand what you’re saying regarding the experts, but 

consulting an expert in my opinion is on a case-by-case basis. And in this 

particular case, the facts of the prior convictions were far worse than the 

facts in this case. And we did everything we could do to make sure that 

 

11 Counsel testified that appellant had two previous sexual assault convictions.

12 Counsel refers here to the suggestion made at various times during the hearing that Linda may 

have encouraged her daughter, S.Z., to make false claims of sexual abuse because appellant had 

stopped providing financial support to Linda.
17

didn’t happen. And the issues you’re touching on could very well have 

opened the door to those issues.

Counsel explained that this was “one of the reasons” why he did not consult an expert, 

or ask the court for funds to hire an expert, on the topic of children potentially fabricating 

reports of sexual abuse. When substitute counsel asked if it would be “impossible to 

develop a defense” without opening the door to appellant’s criminal history, trial counsel 

replied:

Yeah. I believe it would be—it would be next to impossible because the—

it would be very difficult because of—there’s some facts—there’s some 

facts in this case that you’re avoiding or you may not know about that 

would have opened the door to the prior convictions. There are—that’s—

that’s the whole gist of the family dynamic is the prior convictions, and that 

would have opened the door. It would have.

Considering this testimony, we cannot conclude, as the courts did in Briggs, Ard, 

and S.J.P., that counsel failed to use reasonable professional judgment. According to 

counsel’s testimony, the decision not to consult or retain an expert or ask the trial court 

for funds to do so was not a “financial” decision; it was a tactical decision made with the 

explicit objective of preventing the jury from being made aware of appellant’s prior 

convictions for crimes similar to those for which he was being tried. Moreover, in direct 

contrast to Briggs, there is nothing in the record in this case indicating an “obvious” 

need to develop potentially exculpatory evidence.

We conclude that appellant has failed to overcome the “strong presumption” that 

trial counsel’s decision not to consult an expert can be considered “sound trial strategy.” 

See Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. We overrule his third 

issue.
18

III. CONCLUSION

The judgments of the trial court are affirmed.

________________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

11th day of July, 2013.