### IN THE TENTH COURT OF APPEALS
No. 10
- 09
- 00058
- CR
SAMMIE RAY HOLBERT , Appellant v. THE STATE OF TEXAS , Appellee

From the 18th District Court Johnson County, Texas Trial Court No. F40381

MEMORANDUM OPINION
A jury found Sammie Ray Holbert guilty of two counts of aggravated sexual assault of a child and four counts of indecency with a child. The jury assessed his punishment, enhanced by a prior felony conviction, at life imprisonment and a $10,000 fine for each count of aggravated sexual as sault of a child and life imprisonment and a $3,000 fine for each count of indecency with a child. The trial court ordered Holbert’s sentences for counts one, two, and three to run consecutively and his sentences forHolbert v. State Page 2

counts four, five, and six to run conc urrently with his sentence for count one. In three issues, Holbert appeals. We will affirm. We begin with Holbert’s second and third issues in which he contends that the evidence is legally and factually insufficient to support his conviction s . The court of criminal appeals recently held that there is “no meaningful
distinction between the Jackson v. Virginia legal

- sufficiency standard and the Clewis
factual

- sufficiency standard” and that “the Jackson v. Virginia legal

- sufficiency standard is the only sta ndard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary, including
Clewis , are overruled.” Brooks v. State , 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010). Accordingly, we will apply the same standard of review to each of Holbert’s sufficiency complaints. When reviewing a challenge to the sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318

- 19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor
of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).Holbert v. State Page 3

Section 22.021(a) of the penal code provides, in relev ant part, that a person commits the offense of aggravated se xual assault of a child if he intentionally or knowingly “ causes the sexual organ of a child to contact

. . . the

. . . sexual organ of another person, including the actor, ” and the victim is youn ger than fourteen years of
age. T EX
. P ENAL C ODE A NN
. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp. 2010 ). Section
21 .11(a) provides, in relevant part, that a person commits the offense of indecency with
a child if he engages in sexual contact with a child younger than seventeen years of age who is not his spouse

. Id. § 21 .11(a)(1), (b

- 1) (Vernon Supp. 2010 ). “Sexual contact”

means “ any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child” “ if committed with the intent to arouse or gratify the sexual desire of any person. ” Id. § 21 .11(c)(1). The requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant’s conduct, remarks, and all surr ounding circumstances. Breckenridge v. State , 40 S.W.3d 118, 128 (Tex. App.

— San Antonio 2000, pet. ref’d) (citing McKenzie v. State , 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981)). A child victim’s testimony alone is sufficient to support a conv iction for aggravated sexual assault of a child or indecency
with a child. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 38.07 (a) (Vernon 2005 ); Abbott v. State , 196 S.W.3d 334, 341 (Tex. App.

— Waco 2006, pet. ref’d) ; Tear v. State , 74 S.W.3d 555, 560 (Tex. App.

— Dallas 2002, pet. ref’d). To prove counts one and two as set forth in the charge, the State was required to
establish beyond a reasonable doubt that, on or about November 1, 2005, and December 1, 2005, in Johnson County, Texas, Holbert “intentionally or knowingly cause[d] theHolbert v. State Page 4

sexual organ of [M.S.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the sexual organ of the defendant.” To prove counts three and four as set forth in the charge, the State was required to establish beyond a reasonable doubt that, on or about November 1, 2005, and December 1, 2005, in Johnson County, Texas, Holbert “intentionally or knowingly, with the intent to arouse or gratify the sexual desire of said defendant, engage[d] in sexual contact by touching any part of the genitals of [M.S.], a child younger than 17 years of age and not the spouse of the defendant.” To prove counts five and six as set forth in the charge, the State was required to establish beyond a reasonable doub t that, on or about November 1, 2005, and December 1, 2005, in Johnson County, Texas, Holbert “intentionally or knowingly, with the intent to arouse or gratify the sexual desire of said defendant, engage[d] in sexual contact with [M.S.], a child younger th an 17 years of age and not the spouse of the defendant, by touching the breast of [M.S.].”
M.S. testified that her mother began dating Holbert in August 2005. Shortly thereafter, Holbert and her mother married, and he moved into their home in Cleburn e . O ne day at the beginning of November 2005 , about a month after Holbert had moved in, M.S. found herself alone in the house with Holbert. Holbert offered to give M.S. a massage in his bedroom . At first, Holbert massaged M.S.’s shoulders and feet, but then, he began working his hand up her leg and touched her vagina with his fingers. M.S. was “frozen and speechless.” Holbert then touched her breasts with his hands , and
Holbert and M.S. then had sexual intercourse. M.S. stated that, during November and
Dec ember 2005 , they had sexual intercourse six or more times and that he touched herHolbert v. State Page 5

vagina and breasts with his hand on more than one occasion. Throughout this time, M.S. was only twelve years old.
M.S.’s mother testified that in May 2006, she and M.S. had a conversation in which M.S. told her that Holbert “ had gave [sic] her a shoulder rub and that t hey were having sex in my bedroom.” M.S. also told her that Holbert “ would rub on her
breasts. ” Donna Wright, a pediatric nurse practitioner and nurse manage r for the Child Advocacy Resource and Evaluation Team (the CARE Team) at Cook Children’s Medical Center in Fort Worth, testified that she then examined M.S. in June 2006. M.S.
told her that when she was twelve years old, Holbert had had sex with her in he r mom’s room while her mom w as at work. M.S. also stated that Holbert had “rubbed on her vagina” and touched or fondled her breasts. She said that it happened six times, the last time being in December 2005.
Holbert testified that he believed M.S.’s moth er had called on one occasion and he told her that he was going to rub some Aspercreme on M.S.’s shoulder because she
had hurt it but that he had never had any sexual contact with M.S. He stated that it was “impossible” to be alone with any child in the h ouse because there were so many people living there. He said that he has children and thus would never do anything to hurt a child. He also has a family that he loves very much and would never do anything like this to shame his or his family’s name.
Holb ert argues that th e evidence is insufficient because “[t]he record is completely devoid of any sufficient details regarding any of the allegation [sic] to which the Appellant is charged” and “[a]ny testimony regarding this incident is contradictedHolbert v. State Page 6

by state ments elsewhere in the record such as whether or not other persons were present in the home, lotions being used or not used, [and] where and when any of these crimes allegedly occurred.” By finding Holbert guilty, the jury obviously believed
M.S.’s testim ony and did not believe Holbert’s testimony . T he jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony. Jaggers v. State , 125 S.W.3d 661, 672 (Tex. App.

— Houston [1st Dist.] 2003 , pet. ref’d) (citing Penagraph v. State , 623 S.W.2d 341, 343 (Tex. Crim. App. 1981)). A jury may believe all, some, or none of any witness’s testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). As the reviewing court, we “should not

s ubstantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.” Vasquez v. State , 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); see also Sharp , 707 S.W.2d at 614. We must defer to the jury’s determination con cerning what weight to give the contradictory testimonial evidence. See, e.g. , In re A.B. , 133 S.W.3d 869, 873

- 74 (Tex. App.

— Dallas 2004, no pet.); Scugoza v. State , 949 S.W.2d 360,
362

- 63 (Tex. App.

— San Antonio 1997, no pet.); Fetterolf v. State , 782 S.W .2d 927, 933 (Tex. App.

— Houston [14th Dist.] 1989, pet. ref’d). Viewing all the evidence in the light most favorable to the verdict, we conclude
that the evidence is sufficient to support Holbert’s convictions. We overrule Holbert’s
second and third issue s. We now turn to Holbert’s first issue, in which he contends that he did not receive effective assistance of counsel as guaranteed by the United States and Texas
constitutions.Holbert v. State Page 7

To prevail on an ineffective assistance of counsel claim, the familiar Strickl and v. Washington test must be met. Wiggins v. Smith , 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)); Andrews v. State , 159 S.W.3d 98, 101

- 0 2 (Tex. Crim. App. 2005) (same). Under Strickland , the appellant must prove by a preponderance of the
evidence that (1) counsel’s performance was deficient, and (2) the defense was prejudiced by counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Thompson v.
State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. There is a strong presumption tha t counsel’s actions and decisions were reasonably professional and motivated by sound trial strategy. See Salinas v. State , 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Stults v. State , 23 S.W.3d 198, 208 (Tex. App.

— Houston [14th Dist.] 2000, pet. ref’d). To overcome the presumption of reasonably professional assistance,

a ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson , 9 S.W.3d at 813.
When the rec ord is silent regarding the reasons for counsel’s conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court.
Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.

— Houston [1st Dist.] 1996, no pet.) (citingHolbert v. State Page 8

Jack son v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Th erefore , absent specific explanations for counsel’s decisions, a record on direct appeal will rarely contain
sufficient information to evaluate an ineffective assistance claim. See Bone v. Stat e , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Holbert first claims that his trial counsel provided ineffective assistance because
he introduced into evidence letters that M.S.’s mother had written to Holbert while
Holbert was confined in the county jail b efore trial. During his cross

- examination of M.S.’s mother, defense counsel introduced the letters and highlighted the fact that, throughout the letters, M.S.’s mother repeatedly asks for a divorce but made only one
brief reference in one letter about the allegations in this case. However, w hen defense counsel asked M.S.’s mother why she never addressed the allegations in the letters, she stated that a caseworker at the Child Advocacy Center told her not to talk about it. On redirect, the State then poin ted to several portions of the letters , and M.S.’s mother explained that they were subtle references to the allegations. The State also asked M.S.’s mother what she meant when she wrote, “I was your wife and you had came [sic] to me and talked about thing s that your mother did to you.” M.S.’s mother replied
that Holbert made the inference to her that he had been se xually molested by his
mother. Holbert argues that there could have been no reasonable trial strategy for introducing the letters because they contain highly prejudicial statements that bolstered the case against him, opened the door to extraneous acts that would otherwise be inadmissible, set him up for impeachment by the State, and diminished his credibility inHolbert v. State Page 9

front of the jury. Defense couns el indicated in his opening statement that he intended to introduce evidence, including the letters, that suggested that the allegations against
Holbert were “concocted.” When we look at the record as a whole, we cannot conclude
that no reasonable attorne y would have adopted this strategy. Without additional evidence regarding trial counsel’s strategic intent, we must presume that trial counsel introduced the letters as part of a valid trial strategy

. See Salinas , 163 S.W.3d at 740 ; Gamble , 916 S.W.2d at 93

. Second, Holbert claims that his trial counsel provided ineffective assistance because he failed to object and to request a limiting instruction when: (1) M.S. testified during the State’s direct examination of her that she and Holbert had engaged in oral
sex on a few occasions ; (2) the State impeached Holbert’s credibility by questioning him about the details of his prior convictions , including the prior felony used to enhance punishment ; and (3) t he State questioned Holbert during its cross

- examinat ion of him about having eight children with six different women out of wedlock

. B ut the record is
silent as to defense counsel’s reasons for not objecting to this testimony. Without such evidence, we must conclude that Holbert has not overcome the presum ption that counsel’s actions and decisions were reasonably professional and motivated by sound trial strategy. See Salinas , 163 S.W.3d at 740; Stults , 23 S.W.3d at 208. Third, Holbert claims that his trial counsel provided ineffective assistance
becau se he failed to object to the following prejudicial hearsay evidence introduced by the State: (1) a Valentine’s Day card/letter that M.S.’s mother testified was written by Holbert to M.S.; (2) another Valentine’s Day card/letter that M.S. testified was wr ittenHolbert v. State Page 10

by Holbert to her; and (3) Detective Don Beeson’s testimony concern ing statements M.S. made during the forensic interview at the Child Advocacy Center. The Valentine’s Day cards/letters written by Holbert were not hearsay because they we re admission s by a party

- opponent. See T EX
. R. E VID
. 801(e)(2)(A); Trevino v. State , 991 S.W.2d 849, 853 (Tex. Crim. App. 1999). Furthermore, Holbert has provided no evidence regarding defense counsel’s reasons for not objecting to any of this testimony. Without su ch evidence, we are unable to conclude that trial counsel’s performance was deficient. See Salinas , 163 S.W.3d at 740; Gamble , 916 S.W.2d at 93. Fourth, Holbert claims that his trial counsel provided ineffective assistance
because he failed to elicit tes timony to rebut or explain medical evidence offered by the State regarding a sexually transmitte d disease of the alleged victim, and, fifth, Holbert claims that his trial counsel provided ineffective assistance because he failed to adequately make an offer of proof regarding a defensive theory of the case. However, the record is again silent as to defense counsel’s reasons for his actions and decisions. To conclude that trial counsel was ineffective based on either of these asserted grounds
would call for speculation, which we will not do. See Jackson , 877 S.W.2d at 771; Gamble , 916 S.W.2d at 93. Without such evidence, we must conclude that Holbert has not overcome the presumption that counsel’s decision to not elicit testimony about the victim’s past se xual behavior was reasonably professional and motivated by sound trial strategy. See Salinas , 163 S.W.3d at 740; Gamble , 916 S.W.2d at 93

. Last ly , Holbert claims that his trial counsel provided ineffective assistance
because he “ continually demonstrated a lack of knowledge and understanding of theHolbert v. State Page 11

law. ” Specifically, Holbert points out that on several occasions after the State made an objection that the trial court sustained, his counsel asked the court to “note our exception” and then requested a mistri al, which was denied. Holbert also states that his counsel’s request for a directed verdict was untimely. Again, the record is silent as to defense counsel’s reasons for his actions and decisions; therefore, we are unable to
conclude that trial counsel’s performance was deficient. See Salinas , 163 S.W.3d at 740;
Gamble , 916 S.W.2d at 93. Furthermore, we have already concluded that the evidence is sufficient to support Holbert’s convictions; thus, there is no evidence in the record that
Holbert’s defense was prejudice d by these actions by counsel. See Williams v. State , 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (stating that appellate issue complaining of trial court’s failure to grant motion for directed verdict is treated as challenge to legal
suffici ency of evidence).
We overrule Holbert’s first issue and affirm the trial court’s judgment.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis , and Justice Scoggins Affirmed Opinion delivered and filed May 4, 2011 Do not p ublish [C RPM ]