C O U R T O F A P P E A LS EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

CRAI G STEPHEN GERHARDT, SR., Ap pe lla nt, V. TH E ST AT E O F TE XA S, Appellee
. § § § § § § § No . 0 8- 10 -0 00 07 -C R

Appea l from the 221st J udicial District Court of Mo ntg ome ry

County , T e xas (TC# 08-02-01425- CR)

O P I N I O N Appellant wa s convicted of indece ncy

with a child by

sexual contact. The tr ial court
a sse sse d p un ishme nt at 6 ye ars ’ c on fi ne me nt. Af te r t he c ourt de nie d h is m oti on

fo r n e w tri a l, Ap pe lla nt p e rf e c te d th is a

pp e a l. H e argue s th a t he wa s d e pr ive d o f h is Si xth A me ndme nt r ig ht t o
e ff e c tiv e a ssi sta

nc e of c ouns e l, a

nd that th e e vid e nc e wa s f

a c tua lly ins uf fi c ie nt t o s up po rt

his conviction. In the ea rly morning of Nove mber 11, 2007, Appe llant’s daug hter, Sara h Ger hardt B oy d, dropped of

f her five-year -old daug hter, J.G., at Appellant’s home be fore headingto work. Susan Ger hardt, Appe llant’s wife, w as in the hospital at that time, and only Appellant and his son, C.J ., wer e at home that morning. A t 10 or 10:30 a.m. that day , while C.J . was still in his bedroom, he he ard Ap pe lla nt s ay , “ To uc h it . T ou c h th is r ig ht h e re ,” and “ Th a t’ s th e sp ot. ” Up on op e nin g his bedroom door a

nd looking to the r ight, C.J. s aw Appe llant ly ing on the bedroom floor with J .G. standing over him, but he did not see A ppellant touch J.G. Appellant then g ot up from the floor,-2-

and wa lked into the bathroom, but C.J . did not confront him or J.G. reg ardingwhat had happene d. Severa l day s later, Appe llant and C.J . g ot into an argument, and as A ppellant walke d out of the ho us e , C. J. state d to Sus an: “ I ’m no t th e on e that mo le ste d [J.G .].” C.J. the n to ld h is mother what he had se en and he ard the morning of Nove mber 11, 2007, a nd afte r Susan aske d him to repeat what he just said, she c alled Sara h. After lear ning f rom Susan that Appellant had touched J.G., Sarah ca lled the police. Shortly afte r 10 p.m. on Novembe r 19, 2007, De puty J ason Du jard in f ro m th e Mo ntg ome ry

County She ri ff ’s Of fi c e arr ive d at Sa

ra h’ s h ome . Upo n a

rr iva l, Deputy Dujardin talke d to Sarah for thirty to forty -five minutes, a

nd based on the provided information, both Deputy Dujardin a

nd his supervisor believe d there would be no phy sical
e vid e nc e le ft

be hin d, and

so the de puty

no tif ie d D e te c tiv e Do n G ay

a bo ut t he c a se in o rd e r t o schedule a Children’s Saf e Ha rbor inter view for J .G. Dete ctive Ga

y then spoke with Sara

h, advised he r about Children’s Saf e Ha rbor, a nd set up a Safe Har

bor interview

for J.G. On November

27, 2007, Pennie Stanley , the Safe Har bor for ensic intervie wer , conducte d an interview of

J .G., wher eas K are n Trevino, a sexual assault nurse examiner, examined J .G. B ased on J .G.’s outcr

y , the re sults of her medica l exam, and a written stateme nt from C.J . reg ardingthe inc ide nt, De te c tiv e Ga

y de c ide d to re fe r t

his c a se to t

he Di str ic t A tto rn e y ’s of

fi c e fo r c ha

rg e s. Appellant wa s tried bef

ore a jury on a one- count indictment. After the State re sted, Appellant moved f

or a dire cted ve rdict, but the trial cour t denied his motion. Appellant was convicted of

indece ncy

with a child by

contac t, and the cour

t assessed his punishment at confine ment for six y ear s. Appellant subseque ntly filed a motion for ne w trial, and the n filed a notice to appe al the trial c ourt’s judg ment of convic tion and sentenc e.-3-

In I ssu e On e , App e lla

nt c omp la ins that he wa s d e pr ive d o f h is Si xth A me ndme nt r ig ht t o eff ective a ssistance of c ounsel bec ause his trial c ounsel rende red ine ffe ctive assistanc e duringthe g uilt-innocence phase of

trial by failingto object to the State’s admission of hea rsay and bolstering evidenc e. We re view cla ims of ineffe ctive assistanc e of c ounsel under the two-step analy sis adopted by

the United States Supreme Court in Strickland v. W ashington , 466 U.S. 668, 687, 104 S.Ct . 2052, 2064, 80 L .Ed.2d 674 (1984). Se e He rn an de z v . S tate , 988 S.W .2d 770, 77 1- 72 (T e x.Cr im. Ap p. 19 99 ). “ Ap pe llate re vie w o f d e fe ns e c ouns e l’ s r e pr e se ntatio n is highly defe rential a

nd presumes that counsel’s a ctions fell within the wide ra ng e of r easona

ble and profe ssional assistance.” Bo nev . S tate , 77 S.W .3d 828, 833 (Tex.Crim.App. 2002). On appe al, Appellant a

rgues that the testimony

of Ms. Stanley , the fore nsic interviewe r,
and the vid e ota

pe d s tate me nt o f J.G . c on sti tut e d in a dmi ssi ble he ars ay and bo lst e ri nge vid e nc e , in pa rt ic ula r b e c a us e the y we re int ro du c e d p ri or

to J.G .’ s o wn

tr ia l te sti mony . A s su c h, in Ap pe lla nt’ s v ie w, his tr ia l c ouns e l’ s f a ilure to o bje c t to the a dmi ssi on of su c h e vid e nc e “ c an o nly be cha rac terized as fa lling below a n objective standa

rd of r easona

bleness,” a

nd the counse l’s “def icient per formanc e pre

judiced the outcome of [his] trial.” Under the first prong , the def

endant must show that counse l’s perf ormanc e wa s deficie nt to the extent that counsel failed to func tion as the “c ounsel” guara nteed by the Six th Amendment. J ac k so n v . S tate , 877 S.W .2d 768, 771 (Tex.Crim.App. 1994). Alleg ations of ineff ective
a ssi sta nc e mus t be fi rm ly

fo un de d in

the re c or d, and

the re c or d mu st a ff

ir mativ e ly de mon str a te the alleg ed inef

fec tiveness. Ma lle tt v . S

tate , 65 S.W .3d 59, 63 (Tex.Crim.App. 2001). The revie w of de fense counsel’s r epre sentation is highly defe rential a

nd presumes that counsel’s actions fe ll within a wide rang e of r easona ble profe ssional assistance. Id . at 63. When the re cordIn Appellant’s f irst trial, the court de clar ed a mistrial due to jury deadloc k. 1 -4- is s ile nt a s to c ouns e l’ s mo tiv a tio ns fo r t a c tic a l de c isi on s, the a pp e lla nt u su a lly c ann ot o ve rc ome the strongpresumption that counsel’s c onduct is rea sonable. Id . In mo st c a se s o n d ir e c t a pp e a l, the re cord is not suffic iently develope d and ca

nnot adequately

demonstrate the motives behind counsel’s de cisions. Id
. Under the sec ond prong , the def endant must establish that counsel’ s deficie nt perf ormanc e pre

judiced the de fense
. Strickland , 4 66 U. S. at 68 7, 10 4 S. Ct. a t 20 64 ; Jack son , 87 7 S. W.2 d at 77 1. Pr e

jud ic e is e sta

bli sh e d b y

a sh ow ingthat th e re is a

re a so na ble pr ob a bil ity that but for counse l’s unprofe ssional error s, the result of the pr ocee ding w ould have be en differ ent. Strickland , 466 U.S. at 694, 104 S.Ct . at 2068; Jack son , 877 S.W .2d at 771. The prejudice analy sis need not be a ddresse d when the a ppellant fa ils to satis fy

the first prongof the analy sis. Se e Ma lle tt , 65 S.W .3d at 68. The re cord is silent as to why Appellant’s tria l counsel took or fa iled to take the a ctions he did. Indeed, A

ppellant conc edes in his brief that althoug h he re quested dismissal of his trial counsel prior

to the first trial of this case , “[h] is request wa s denied on F ebrua ry 2, 2009,” and

“ [n]o r e po rt e r’ s r e c or d w a s ma de a s to the re a so ns fo r [h is] r e qu e st, or the c ourt ’s de nia l, b e c a

us e a h ea ri n g wa s n o tre qu es t edo r h el d o nth e m at t er . ” Ap p el l an tad d i t i o n al l y s t at edth atal th o u gh 1 he had f iled a bar g rieva nce a g ainst his attorney

reg ardinga past issue, he did not indicate the nature of this gr ievanc e to the trial c ourt. Our r eview of the re cord shows that on the last day of tr ia l, u po n th e tr ia l c ourt ’s ob se rv a tio n th a t App e lla nt h a d f ile d th e g ri e va

nc e a g a ins t hi s c ouns e l, the c ourt qu e sti on e d App e lla

nt a s to wh e the r h e ha d “ any iss ue wi th h ow[his tr ia l c ouns e l ha s] conducte d himself in this t rial up to this point.” I n response , Appellant stated, “No, ma’a m. No-5-

ma ’a m.” Whe n th e tr ia l c ourt

a sk e d App e lla

nt i f h e ha d “ any

iss ue wi th t

he wa y [tr ia l c ouns e l] has re prese nted him in this trial,” Appe llant also answer ed, “N o, ma’am.” Moreove r, a tria l counsel has no oppor tunity to expl ain his conduct if the de fenda nt he repr esents does not ra ise an a lleg ation of ineff ective a ssistance of c ounsel in a motion for new trial. Go od

sp e e d v . S

tate , 187 S.W .3d 390, 392 (Tex.Crim.App. 2005). Wi thout such op po rt un ity , a n a pp e llate c ourt

sh ou ld n ot f

ind the tr ia l c ouns e l’ s p e rf

or manc e de fi c ie nt, un le ss the c ha lle ng e d c on du c t w a s “ so outr a g e ou s th a t no c omp e te nt atto rn e y wo uld have e ng a g e d in it.” Id . at 392, qu oti ng

Ga rc ia v . S

tate , 57 S.W .3d 436, 440 (Tex.Crim.App. 2001). I n this case, Appellant filed a

motion for new tria l, but he did not raise any alleg ations of ineff

ective assistance of counse l in the motion. We have no r ecor d explaining counse l’s thought pr ocesse s, or lack the reof , reg ardingthe actions Appe llant now complains of. Without a recor d explaining counse l’s actions, we cannot de te rm ine that c ouns e l w a s c on sti tut ion a lly de fi c ie nt u

nle ss w e de te rm ine the c on du c t w a s, “ so outrag eous that no compe tent attorney would have e ng ag ed in it.” See G oodspeed, 187 S.W .3d
a t 39 2. Ab se nt a

n e vid e nti ary

he ari ngin whic h d e fe ns e c ouns e l is pr ov ide d th e op po rt un ity to explain his actions and tria l strateg y , we g ener ally must presume that counse l rende red
rea sonably

eff ective a ssistance. See J

ackson , 877 S.W .2d at 771. Appellant ha s failed to ca rry his burden under

the first prongof the Strickland test on his ineffec tive assistance claim. See Ga rc ia , 57 S.W .3d at 440-41. Ac cording ly , I ssue One is ove rruled. In I ssu e Tw o, Ap pe lla

nt c ha lle ng e s th e fa c tua l su ff ic ie nc y of the e vid e nc e su

pp or tin g his conviction. Howe ver, since Appellant’s br ief wa s filed, the Te x as Court of Criminal Appea ls has ruled that the only

standard a

pplicable to dete rmine whe ther the e vidence is sufficient to support-6-

eac h element of

a cr iminal offense is the J ac k so n v . V irg ini a leg al suffic iency

standard. See Br oo k s v . S tate , 323 S.W .3d 893, 895 (Tex.Crim.App. 2010)(holding that “the Jack son v. Vi rg ini a le g a l- su ff

ic ie nc y sta nd ard is the on ly

sta nd ard that a re vie wi ngc ourt

sh ou ld a pp ly in deter mining whe ther the e vidence is sufficient to support ea ch ele ment of a c riminal offe nse . . . .”). The ref

ore, in the inter ests of justice, and in lig ht of the Br oo k s decision, we will construe I ssue Two a s a cha lleng e to the leg al suffic iency of the e vidence
. Se e id . A leg al suffic iency revie w re quires the a

ppellate c ourt to determine whether , “[c]onsi deringall of the e vidence in the light most favor able to the ve rdict, wa s a jury rationally

justified in finding guilt bey ond a
rea sonable doubt.” Id . at 899, c iti ng J ac k so n v . V irg ini a , 443 U.S. 307, 319, 99 S.C t. 2781, 2789, 61 L .Ed.2d 560 (1979). In conductingthis review, we must defer to the jury ’s role a s the sole judg e of the cre dibilit y and we ight that testimony is to be aff

orded. Id . at 899. Appellant ar g ues on appe al that abse nt inadmissibl e hea rsay and bolsteringevidenc e that
wer e admitted at tria l, “the State’s pr oof of guilt is so obviously weak as to undermine confide nce in the jur

y ’s guilty verdic t.” We note, howeve r, that in a leg al suffic iency revie w, we “must evaluate all of the e vidence in the rec ord, both direc t and circ umstancial, whe ther admissible or inadmissible.” De wbe rry v . S tate , 4 S.W .3d 735, 740 (Tex.Crim.App. 1999). A per son commits the offense of indec ency with a child if, with a c hild y oung er tha n sevente en y ear s of ag e and not the pe rson’s spouse, he eng ag es in sexual contact with the child or
cause s the child to eng ag e in sexual contact. T EX .P EN .C ODE ANN . § 21.11(a) (1)( West 2011). “Sexual contact” inc ludes any touching , including touc hing thr oug h clothing, of the anus, the brea st, or any

part of the g enitals of the c hild if committ ed with the intent to arouse or g ratify the sexual desire of a

ny person. T EX .P EN .C ODE ANN . § 21.11(c) (1). The specific intent to arouse orAt trial, C.J . testified that he obse rved J.G. standing “ over” Appellant whe n the incident 2 occur red. -7- g ratif y the se xua l de sir e of

a pe rs on c an b e inf

e rr e d f ro m a de fe nd ant’ s c on du c t, r e mark s, or a ll the surroundingcirc umstances. Se e Mc Ke nz iev . S

tate , 617 S.W .2d 211, 216 (Tex.Crim.App. 19 81 ); Nav arro v . S

tate , 241 S.W .3d 77, 79 (Tex. App.--Houston [1st Dist.] 2007, pet. re f’d)
. In the instant case , on November 30, 2007, Detec tive Gay

took down C.J .’s written
s t a t e m e n tr e g ar d i n g th e i n c i d e n tu p o nl o c a t i n g h i ma th i s w o r k p l a c e . Inth e s t a t e m e n t , C
. J. indicated that a fter w akingup on the morningof the incide nt, he hea rd Appe llant say

something
a bo ut t ou c hin g , a

nd be lie vin g he wa s d

re amin g , h e g ot u

p a nd lit a c ig are tte , a

nd wa lke d to his bedroom door. When he rea ched the doorwa y and looked towa

rds the living r oom, he did not see any thing, but whe n he looked towa rds Appellant’ s bedroom, he sa w Appellant lying down on the floor ther e, with J .G. standingup next t o Appellant. When Appellant saw C.J., Appellant got 2 up, said “hi” to C.J ., and wa lked into the bathroom. At trial, C.J . testified to the fore g oing inf or matio n c on ta ine d in

his state me nt. When Kare n Trevino, a

sexual assault nurse examiner, intervie wed J.G. and asked he r why she wa s at the examination that day , J .G. re plied: “B eca use my g randpa touched my

pee pee.” Ms. Trevino testified that whe n J .G. said “my pee pe e,” she touched he r vag ina on the outside of her

clothes. In response to Ms. Trevino’s followingquestion, “What did he touch you with? ,” J.G. replied: “His fing ers.” J .G. informed Ms. Tr evino that nothing c ame out of Ap pe lla nt’ s p ri vate pa

rt wh e n th is h a

pp e ne d, and

that th is i nc ide nt o c c ur

re d o nly on c e in Appellant’s be droom on his bed. The one unusual finding Ms. Trevino made in J .G.’s ca se wa s g e ne ra lize d e ry

the ma , b ut t

hat di d n ot n e c e ssa

ri ly me an th a t a

se xua l a ssa

ult or an in de c e nc y

wi th-8-

a child occ urre d. Howeve r, base d on J .G.’s re sponses duringthe phy sical examination, Ms. Trevino conc luded Appellant dig itally penetr ated J.G.’s sexual orga n. Cindy Pulcher, a

n assistant district attorney for Montg omery

County , then testified reg ardingthe pre parations she did with J .G. in this particular c ase, a s well as J.G.’s demonstration of the inc ident to her. Dur ing the pretria l demonstration, when Ms. Pulcher asked J.G. wh e the r A

pp e lla nt t ou c he d h e r “ ins ide ” or “ outsi de ,” J.G. ans we re d, “ Ins ide .” J.G. a lso informed Ms. Pulcher

that the incident occ urre d in Appellant’s bedr oom on his bed. Subsequently , Pennie Stanley , a for ensic intervie wer , testified that she met with J.G. for a fore nsic interview, a

nd a videor ecor ding of

their interview

was shown to the jury

duringher testimony . Ms. Stanley

testified that J .G. communicate d as a nor mal five-year -old would, and
no ne of J.G. ’s re sp on se s r a ise d a re d f la g fo r h e r. Th e vid e o s ho we d J.G . p hy sic a lly demonstratingto Ms. St anley how Appellant touche d her “ pee pe e.” B ased on c erta in anatomical draw ings, J.G. refe rre d to her va g ina as he r “pe e pee ,” and this term sig nified both the fe male and male sexual org ans to her. J.G. told Ms. S tanley that Appellant touche d her unde rneath her underw ear , and that Appe llant placed his fing er on top of he r sexual org an. J.G. also informed Ms. Stanley

that she told Susan about beingtouched by Appellant, and C.J. had seen a nd hear d what happe ned.

Acc ordingto Sarah B oy d, on November 11, 2007, she droppe d J .G. off at Appellant’s residenc e at 5:30 a.m. The next day , Susan Gerha rdt ca lled her at 9 p.m., and informed Sar ah that C.J . told her that Appe llant had touched J.G. At the end of the conver sation, Sarah de cided to c a ll the po lic e . A ft e r t a lki ngto t he po lic e , Sa

ra h to ok J.G. to h e r b e dr oo m, a

nd a sk e d h e r i f-9-

Appellant had touc hed her . In response , J .G. put her he ad down a nd answe red, “ Yes” in a quiet voice. Dur ing the ir conve rsation, J .G. re veale d to Sarah that she ha d g one into Appellant’s bedroom in the morningto ask for br eakf ast befor e the incide nt occur red. When Sara

h asked J .G. wher e Appe llant had touched he r, J.G. replied that he ha d touched he r “on he r potty ,” ref err ing to he r private are a. Usingeither a baby doll or a Care Be ar, Sar ah aske d J .G. to show her where Appellant had touc hed her , and J.G. indi cate d that Appellant put his hands on her vag inal are a. J.G. tol d Sarah that Appellant had a sked her to pull down her pants bef ore he tou c he d h e r. J.G. inf

or me d h e r m oth e r t

hat w he n App e lla

nt t ou c he d h e r d ow n th e re , “ his pr ivate
are a . . . g rewbigg er a

nd it looked like a mushroom.” J.G. also told S ara h that Appellant had
a sk e d h e r t o to uc h h is p ri vate are a , b ut s he sa id “ no ” to h im. At trial, J .G. testified that whe n she wa s in Appellant’s bedr oom and on his bed, he touched he r on her

potty with his finge r. She testified that Appe llant asked he r to touch him on his potty as we ll, but she refuse d to do so. She also testified that C.J . was in the living room when the inc ident occur

red. Havingrevie wed the r ecor d in the light most favor able to the ve rdict, we conclude that the jury was rationally

justified in finding Appe llant’s g uilt bey ond a re asonable doubt, and the evidenc e wa s leg ally

sufficie nt to support Appellant’s conviction. See B rooks , 323 S.W .3d at 899. Acc ording ly , I ssue Two is over ruled. Havingoverr

uled Appellant’ s issues presente d for r eview, w e af firm the trial c ourt’s jud g me nt. September 14, 2011 DAVI D WEL L I NGTONCHEW, C hief Just ice-10-

B e f o r e C h e w , C
. J. , M c C l ur e , a n d R i v e r a , JJ. (Do Not Publish)