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

NO. 03-04-00159- CR

Ado lfo M or an, App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 390TH JUDICIAL DISTRICT NO. 90202 57, H ONO RAB LE JULIE H. K OCUREK , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appe llant guilty

of indec ency

with a ch i l d b y co ntact. See Tex. P en. Code Ann. § 21.11 (West 2003). The jury assessed punishment, e nhance d by two previous fe lony convictions, at eig hty

y ear s’ imprisonment. Appellant bring s forwa rd one point

o f err or complaining of the de nial of a motion for mistrial and twe nty -six points of error complaining of ineff

ective assistance by

trial counsel. We will overr ule all these points and a ffirm the c onviction.
Backg ro und C.H., the complaining witness, lived with her paterna l gr andfather a nd the g randf ather ’s wife , J anie Gonzales, f rom the time she wa s eig hteen months old until she was twelve y ear s old. Appellant is G onzales’s nephew
. The e vents in question happene d when C.H. wa s ag ed four a nd eleve n. She was twe nty -two at the time of tr ial.2 C.H . te sti fi e d th a t whe n s he wa s f our, a pp e lla nt atte nd e d a

pa rt y a t he r g ra nd pa re nts ’ house. She reme mbere d sitti ng on a couc h with appellant. Appe llant put her hea d in his lap, propped he r fe et on the ar m of the co u ch , an d p u t his finge r in her va g ina. L ater that night, C.H. discovere d blood on her pa nties. Gonzales also saw the blood, a n d s h e as k ed C.H. “if some thing happene d to me.” C.H. did not tell Gonzales w hat appellant had done. Gonzales testified that she
reme mbere d the time w hen C.H. had blood in her panties, but she could not rec all whether appellant h a d b e e ni nh e r

h o u s e t h a td a y. C.H. testified th at ap pellant visited her g randpa rents’ house ag ain when she was eleve n. W h en h e ar ri ved, he hug g ed C.H. and kissed he r on the mouth, trying to use his tongue
. Once ag ain, C.H. found her self seated on the couc h with appellant. Appellant touched and squee zed C.H.’s brea sts. Although C.H.’s g randf ather was also in the room, he did not see what appellant wa s do ing , a nd C.H. did

no t c ry ou t. C .H . te sti fi e d th a t du ri ngthe mon ths fo llo wi ngthi s in c ide nt, appellant r eturne d to the house seve ral times. On ea ch visit, h e wo u l d at tempt to kiss her on the
mouth a nd pu t hi s h a nd s in

he r p a nts
. She sa id that she fi na lly tol d a pp e lla nt t hat sh e wa s g oin g to call the police if he did not stop touching her. Appellant did not return after that. Gonzales testified that sh e no tic e d th a t C. H. did no t li ke a pp e lla nt t o to uc h h e r, bu t sh e a dd e d th a t C. H. did no t li ke to be touche d by

any one. C.H. ran a way from her g randpa rents whe n she was twelve and be g an living w ith her mot he r, wh o h a d b e e n in

pr iso n f or mos t of C.H .’ s li fe up to t

hat time . C. H. so on

be g a n to a

bu se drug s, and she spent tim e in re habilitation prog rams and the custody of the Te x as Youth Commissi on (TYC). She wa s twenty

y ear s old when she f

irst reporte d appellant’ s conduct to the police
.I n many of these points, a ppellant does not spec ify

the testimony

to which he r efe rs. We have 1 analy zed a ppellant’s summary of the trial testimony to ide ntify as best we can t h e t es t imony appellant be lieves wa s objectionable. 3 Ineffe ctive Assistance I n points of err or one throug h twenty -five, appellant ur g es that his trial counsel wa s ineffe ctive bec ause he did not make appr opriate obje ctions to testimony that appellant c ontends was ina dmi ssi ble
. I n p oin t of e rr or tw e nty -s ix, a

pp e lla nt a rgue s th a t c ou nsel ine ff

e c tiv e ly fa ile d to 1 pursue a trial objection to an unfa vorable ruling . We will review these points using the Strickland standard: a

ppellant must show that his attorney made suc h serious er

rors that he was not func tioning eff ectively as counse l and that these e rror s prejudice d appellant’ s defe nse t o such a deg ree that he
was deprive d of a f

air trial. Strickland v. W

ashington , 466 U.S. 668, 687 (1984); He rn an de z v . S tat e , 988 S.W .2d 770, 771-72 (Te x . Crim. A p p . 1999). We must indulge a strong presumption that counsel’s conduct fell within the wide rang e of rea sonable prof essional assistance
. J

ac k so n v . S tat e , 877 S.W .2d 768, 771 (Tex. Crim. App. 1994). To overc ome this presumption, the al l ega t i o ns of ine ff e c tiv e ne ss m

us t be fir mly fo un de d in the re c or d, a nd the re c or d mu st a ff

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

fec tiveness. Ma lle tt v . S

tat e , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001).
He ar sa y /O utc ry Te sti mony Appellant cites e ighte en instance s in which he contends his attorney failed to objec t to direc t or i ndirec t hear say testimony reg arding C.H.’s outcry statements. See Tex. R. Evi d. 802. He a lso asserts that t he testi mony in question was objectionable under article 38.072, which cr eate s
a he ars ay e xce pti on

fo r o utc ry

state me nts ma de by

vic tim s o f c hil d s e xua l a

bu se . Te x. Cod e Cr im. Pr oc . A nn . a

rt . 3 8. 07 2 ( Wes t 20 05 ). Ap pe lla nt c omp la ins that art ic le 38 .0 72 wa s v iol a te d b e c a us e4

more than one outcry

witness was permitted to te stify and beca use the re quisite notice and he aring
wer e not provided. Se e id . art. 38.072, § 2.

Hea rsay is a st atement, other than one made by the declara nt while t estifying at the trial or hea

ring , offe red in e vidence to prove the truth of the matter a sserted. Te x . R. Evid. 801(d). A w i t n e s s n e e d

n o td i r e c t l y

qu o t e a n o u t
- o f

- c o u rts t a t e m e n tf

o r t h e t e s t i m o n y

t o b e h e a r s a y. Testimony that indirectly sug g ests the content of an out-of -cour t statement ca

n also be he arsa

y . See Bu rk s v . S tat e , 876 S.W .2d 877, 898 (Tex. Crim. App. 1994) (police of fice r’s testimony

descr ibing his a c tio ns a ft e r s pe a kin g to c ri me wi tne sse s in dir e c tly c on ve y e d c on te nt o f w itn e sse s’ state me nts to o ff ic e r) ; Sc ha

ffe r v . S tat e , 777 S.W .2d 111 (Tex. Crim. App. 1989) (w itness’s testimony that he had spoken to police office r for whom defe ndant claimed to have bee n acting , and that he w ould not
rec ommend that char g es be dr opped, indirec tly informed jury

that office r denied that de fenda nt had been a cting as his ag ent). Whether testimony constitutes impli ed or indire ct hea rsay depends on how strong ly the content of

the out-of-c ourt statement can be inferr ed fr om the context. He ad v . S tat e , 4 S. W.3 d 258 , 261 (T e x. Cr im. Ap p. 19 99 ). I f the inf e re nc e is c le a r, a nd

if the re is n o o the r p ur

po se f o r t h e t e s t i m o n y t h a n t o c o n v e y t h e c o n t e n t o f t h e o u t
- o f

- c o u rts t a t e m e n t , t h e t e s t i m o n y i s h e a r s a y. Id . at 16 2- 62 ; Schaffer , 777 S.W .2d at 115.

Out c r y t o dr ug c ouns e lor s. I n points of error one, two, n i n e, ele ven, and twe lve, appellant urg es that his attorney should have objec ted to testimony reg ardingC.H.’s outcry

to L inda Silverstein a

nd other drug counselors and their response . C.H. testified that she beg an her first drug reha bilitation progra

m when she w as four

teen. He r testimony

continued:5

Q: Fr om the time that y ou started dr ug treatment, was there ever a point that y ou told any of y our counse lors about having been a bused? A: Ye s, ma ’a

m. Q: And did y ou speak with L inda Silverstein a bout ha ving been sexually

abused? A: Ye s, ma ’a

m. I sp ok e to m os t c ouns e lor s a bo ut t hat. Q: Did—what did y ou tell L inda Silverstein? A: I t o l d h er t h at I had bee n abused a s a child and that nobody ever did any thing about it. And Iwas a lrea dy 18, and I told her t h at

— I m ea n , I wanted to do something a

bout it . . . . And so she refe rre d me to SafePlac e.
SafePlac e is an a g ency

that counsels victims of sexual assault and sexual abuse. L inda Silverstein testified that she is a substanc e abuse counselor and that she w orked with C.H. for about one y ear . Silverstein said that C.H. told her that “she ha d been se x ually abused when she was y oung er.” Silverstein encour ag ed C.H. to g o to SafePlace
.

We believe that it was w ithin the wide rang e of r easona ble profe ssional assistance for appellant’s trial counsel to conclude that this testimony was offere d to prove only the fa ct that C.H . h a d to ld S ilv e rs te in a nd oth e r d ru g c ouns e lor s th a t sh e ha d b e e n s e xua lly a bu se d a nd to e xpla in why C.H. went to SafePlac e. The testimony did not convey the content of C.H.’ s statements to the counselors be y ond the mere fac t that she had be en abuse d. The testimony did not impl y

that C.H. told Si lverstein or a

ny other drug

counselor that appellant had been the abuser , or t hat s he had give n the c ouns e lor s an a c c ount o f a pp e lla nt’ s unla wf ul c on du c t si mil a r t o h e r t ri a l te sti mony . I t w a s a lso within the rang e of r easona ble profe ssional judgment f or counse l to co n cl u d e t hat these va g ue ref ere nces to c hildhood sex u al ab use we re not suff iciently detailed to constitute outcry within theC.H. was eig hteen y ear s old w hen she spoke to Silverstein about her childhood sexual abuse. 2 I n fac t, C.H. was eig hteen or older when she made most of the statements appellant now c laims were ob je c tio na ble un de r a

rt ic le 38 .0 72 . O ne c ourt

of a pp e a ls h a s h e ld that ar

tic le 38 .0 72 do e s n ot a

pp ly to outcry statements made by a person eig hteen y ear s of ag e or olde r, eve n if they descr ibe ac ts of sexual abuse t h at o cc u rr ed when the spe aker was a child. Ha rv e

yv . S tat e , 123 S.W .3d 623, 629 (Tex. App.

— T ex ar k an a 2 003, pet. re f’d) . This question was not briefe d by the par ties, and we e xpre ss n o o pin ion

on it. 6 meaning of ar

ticle 38
. 0 7 2 , an d t hus to invoke the proce dural re quirements of that statute. See Fo re ma n v . S

tat e , 995 S.W .2d 854, 858-59 (Te x . App.—Austin 1999, pet. ref ’d). 2 Out c r y to Safe P lac e c ouns e lor s. I n points of error three and thirtee n, appellant argues that his attorney should have objec ted to C.H.’s testimony reg ardingher outc ry

to counselors at Safe Place a

nd their re sponse. C.H. testified that she we nt to SafePlace for c ounselin g. The counselors advised her to c all the district attorney ’s offic e and make a r eport. She did so when she was twe nty

y ear s old. I n the context of this trial, this testimony may imply that C.H. to l d SafePlac e
c ouns e lor s th a t sh e ha d b e e n a bu se d, bu t it

do e s not sug g e st the sp e c if ic c on te nt o f h e r s ta te me nts
and la c ks the de ta il r e qu ir e d f or a n a rt ic le 38 .0 72 ou tc ry

state me nt. Tr ia l c ouns e l c ou ld r e a so na bly be lie ve that th e te sti mony wa s n ot o ff

e re d to pr ov e the c on te nt o f t he ou t- of -c ourt state me nts
. District attor ney’s re spon se. I n p o in t o f e r r o r e ig h te e n , a

p p e ll a n t c o mp la in s th at his counsel did not object to C.H.’s testimony descr ibing the response of the district attorney ’s offic e to her re port. C.H. testified that when she ca lled the district attorney ’s offic e fr om SafePlace , she was told to speak to a de tective. This testimony did not i n d i re ct l y convey the content of

her statements to the district attorney ’s offic e or c onstitut e outcry within the meaning of ar

ticle 38.072,7

and her attorney could re asonably

conclude that it was offe red only to prove how C.H. came to the attention of prose cutors and the police.

Out c r y t o TY C e m plo ye e s. I n points of err or four and four teen, a ppellant contends his attorney should ha

ve objected to C.H.’ s testimony reg ardingher outc ry

to TYC employ ees a

nd the ir re sp on se . C. H. te sti fi e d th a t sh e wa s pla c e d in TYC cu sto dy wh e n she wa s sev e nte e n. She sa id that w hil e the re , “ I

tol d the m [ab ou t be ingmol e ste d] and the y ke pt s a y ingthat my

g ra nd pa sh ou ld have done something.”

Once ag ain, this testimony does not imply the content of the statements beyond the fac t that they

wer e about “ being molested.” A c ompetent attorne y could conc lude that this testimony did not constitut e objec tionable hea rsay or invoke a

rticle 38.072. Outcry to H o p e C o rdova. I n points of error seven, te n, and seve nteen, a ppellant urg es that his att o rn ey

should have objec ted to testimony reg ardingC.H.’s outcry

to her mother, Hope Cordova , and Cordova’ s response. C.H. te stified t h at wh en she wa s seventee n and in TYC custody , she ca lled her mother and told her that “I had been m olested when I was three or four and that I wa s mo les ted again whe n I wa s 1 1 b y the same pe rs on .” She a dd e d th a t be c a us e it w a s a te le ph on e c a ll, “ Idid

n’ t te ll h e r t

he wh ole s to ry .” Cor do va te sti fi e d th a t w hil e C.H . w a s li vin g in TYC, she had a

conver sation with her daug hter “ about some events that happene d to he r involving Adolfo Mora

n.” Cordova sa id that she ad v i s ed C.H. “to seek c ounseling and to per haps join a support g roup” f

or victims of sexual abuse. Th is t e sti mony , unli ke the te sti mony pr e vio us ly dis c us se d, did c on ve y a t le a st s ome of the substanc e of the out-o f- co u rt s t atement. More over, the statement linked appe llant to theThere is evidence that Alvara do g ave a statement to a police office r and w as pre sent when C.H. 3 sp ok e to Jani e Go nza le s a

bo ut a pp e lla nt’ s c on du c t. Th is e vid e nc e is d isc us se d w ithre sp e c t to po int s of er ror six, eight, and sixteen, inf ra . 8 specific acts of s ex u al contact for whic h he wa s on trial. I t is arg uable that a rea sonably

eff ective attorney would re co gn i z e thi s testimony as an out-of

-cour t statement offe red to prove the truth of the matter a sserted a

nd make a

hear say objection. I t can a lso be argued that C.H.’s stateme nt to her mother wa s outcry

within the meaning of ar

ticle 38.072, and thus objectionable based on the failure to give the re quired notice and the a bsence of a r eliability

deter mination. Outcry to M arco A lvarado. I n points of e rror five a nd fiftee n, appellant a sserts that his attorney

was inef fec tive beca

use he did not objec t to hear say testimony reg ardingC.H.’s outcry to her boy friend, Ma

rco A lvara do, and his response . C.H. testified that when she was e ighte en, she tol d A lva ra do “ a bo ut w hat hap pen ed.” We fi nd no te sti mony

re c ounti ngAl va

ra do ’s re sp on se to thi s. 3 I n context, thi s testimony simply proved the fac t that C.H. told Alvarado that she had been se xu a ll y a

b u s e d
. I t d id n o t im

p ly th e s u

b s ta n c e o f C. H
. ’ s s tate me n t to A lv a r a d o , a nd a
c o mp e t e n ta t t o r

n e y c o u l d r e a s o n a b l y b e l i e v e t h a ti tw a s n o to b j e c t i o n a b l e a s h e a r s a y o r

o u t c r y. Al va r ado ’s st at e m e nt to Off ice r Co c hr an. I n point of err or eig ht, appellant complains of his la

wy er’ s failure to obje ct to the testimony of Austin police off

icer Patrick Cochra

n reg ardinga stateme nt give n to him by Alvara do. Cochran w as assig ned to invest i gat e C .H.’s alleg ations ag ainst ap p el l an t
. C ochra n testified that he took a statement from C.H. a nd then
c on du c te d a

fo llo w- up inv e sti g a tio n. Coc hr a n w a s a sk e d if he too k a state me nt f

ro m A lva ra do in the co u r s e o f h is inv e s ti g a ti o n , a n d h e s a id th a t h e h a d
. H e w a s a s k e d if th e s tate me n t w as9

“consistent with what y ou had bee n—what y ou had lea rned dur ing the course of y our investig ation.” He sa id t hat is wa s. This testimony

was substantially

the same a s the testimony at issue in Head . I n that
case , a p r o s e c u ti o n f

o r s e xu a l a

b u s e o f a c h il d , th e in v e s ti g a ti n g o f f ic e r te s ti f ie d th a t a f

te r he interviewe d the child, he took s tatements fr om the outcry witness and the c hild’s mother. 4 S.W .3d
a t 26 0. He wa s a sk e d if “ the state me nts the y g a ve to y ou [we re ] co ns ist e nt w iththe fa c ts r e la te d to y ou by [t he child] ? ” He said they wer e. Id . The c ourt of cr iminal appeals he ld that the trial court did not abuse its discr etion by admitting this testimony over a hear say objection. Id . at 262-63. The
c ourt re a so ne d th a t “ the dis pu te d te sti mony re ve a le d on ly that the thr e e state me nts re la te d b a sic a lly the same f

acts; it did not

reve al the substance of what those fac ts were .” Id . at 262. The c ourt adde d that th e tr ia l c ourt

c ou ld h a ve re a so na

bly de te rm ine d th a t it

ha d n ot been t

he Sta te ’s so le int e nt t o convey the contents of the out-of -cour t statements. Id . I n light of Head , Cochran’ s testimony was
n o to b j e c t i o n a b l e h e a r s a y. Out c r y t o J ani e G onz ale s. I n points of error six and six teen, a

ppellant urg es that his attorney

should have objec ted to testimony rega rd i n g C
. H.’s outcry

to J anie Gonzales a

nd her
re sp on se . C. H. te sti fi e d th a t sh e a nd Al va ra do we re vis iti ng Go nza le s in her ho me wh e n C. H. fi rs t
c on fr on te d G on zal e s w ithhe r a c c us a tio ns a g a ins t a pp e lla nt. She sa id s he a sk e d Gon zal e s, “ Wel l, did y ou know Adolfo touche d me? ” C
. H. t estified that Gonzales a ppear ed “shoc ked and ne rvous that I ha d g ott e n s o ma d at her.” C. H. sa id G on zal e s w a s su rp ri se d b e c a

us e “ Iha d n e ve r s a id
an y th in g
— e v e r a n y

th in g a b o u t th a t to h e r . ” C. H
. te s ti f ie d th a t G o n za le s in it ia ll y “ in d ic a te d” that she did not want C.H. to testify ag ainst appellant.10 Appellant’s c ounsel could re asonably conclude that this testim ony was not off

ere d to pr ov e the c on te nt of C.H .’ s state me nt to Go nza le s, bu t to pr ov e Go nza le s’ s d e fe ns ive re a c tio n to the a c c us a tio n a g a ins t a

pp e lla nt. On the oth e r h a nd , it

is a rgua ble that a c omp e te nt atto rn e y

wo uld have ma de a he arsa

y objection when C.H. testified that she told Gonzales that “Adolf o touched me.” Opinion and Ch aracter

I n point of err or nineteen, appellant urg es that his tria l c oun s el wa s i n eff ective beca use he did not object when Offic er Cochran ref err ed to C.H. as a victim. Cochran te stified that when he interviewe d C.H., her de meanor was “ what y ou would expect from a victim that had bee n traumatized—.” Appe llant complains that this was improper opinion t es t i m o n y , but he offe rs no discussion, arg ument, or citation of a uthority in support of this contention. T he rec ord re flec ts that Cochran ha d been a

detec tive in the child abuse unit for six y ear s. A rea sonably eff ective attorney could believe that the office r was qualified to make the statement in issue and that an o b j ec t ion would be fr

uitless. See Tex. R. Evi d. 701, 702. I n point of err or twenty -o n e, appe llant argues that his attorney was inef fec tive for failing to object whe n Hope Cordova was a sked for

her “ understandingof the re ason why [C .H.] had not re p o rt ed it .” Cordova sa id, “I think it was pressure from the f amily , and basic ally

that’s it.” On c e a g a in, a

pp e lla nt’ s bri e f co nta ins no a rgume nt spe c if ic a lly a dd re ssi ng his c on te nti on

that th is was inadmiss ible opinion testimony
. I t was withi n the rang e of reasona ble profe ssional competenc e f o r a p p e ll an t’ s c o u n s e l to c o n c lu d e th a t C o r d o v a ’ s s tate me n t w a s a n a d mi s s ib le la y o p in io n . T e x. R. Evid. 701.11 I n p oin ts o f e rr or

tw e nty , tw e nty -t

wo , a nd tw e nty -t hr e e , a pp e lla nt a rgue s th at his attorney was inef fec tive beca

use he did not object t o S i lverstein’s opinion testimony conce rning C.H.’s self-imag e and motives, a nd to Sil verstein’ s testimony attesting to C
. H. ’s g ood char acte r. Silverstein was asked her “impression of how [ C.H.] vi ewe d” the f act of her c hildhood sex ual abuse
. Silverstein an s we re d , “W el l, [ C.H.] never see s herse lf rea lly victimiz ed. So Ithink at first that
c ha ng ed qu ickly , b ut at f

ir st s he kin d o f b lame d h e r o wn se lf , w hic h is no rm a l f

or a se xua l a bu se victim. But I also noticed that it c hang ed her rela tionships with people.
. . . She wasn’t a s trusting or open a s she might ha

ve been
. ” S i l v er s t ein was a lso asked if she thoug ht C.H. “was out for
reve ng e or out to g et somebody in trouble.” She said she did not believe this. Silverstein testified t hat s he had a master’s degr ee in “interve ntion counseling ” and had bee n working as a substanc e abuse counselo r fo r o v er twe nty y ear s. She counseled C.H. f or approximately

one y ear with respec t to her drug abuse. A ppellant’s lawy er c ould rea sonably believe that an objec tion was not warr anted be cause t h e testimony summarized above wa s admissible as either la y or expert opinion. Tex. R . Evid. 701, 702. Other Alleged Errors by Cou nsel

I n points of error

twenty -four

and twenty -five, a

ppellant urg es t hat hi s trial counsel
was ineffe ctive beca

use he did not prope rly

object to Gonzales’s testimony reg ardinga “f

amily rule” that appellant wa s not to be left alone with C.H. The prosecutor asked Gonzales if she e ver ha d a rule “ about Adolfo not beingallowed to be al o n e wi t h [C .H.].” Gonzales answe red, “ No.” The prosec utor

th e n a s k e d , “ D id

y o ue v e r te ll an y o n e th a t yo uk

n e w A d o lf

o w a s n o t—
. ” A p p e ll a n t’s counsel interr

upted to object (outside the jur y ’s hear ing) that the question violated the cour t’s order12

instructing the State to obtain a ruling befor e offe ring evidenc e of e x trane ous misconduct. The c ourt i n s t r u c t e d t h e p r o s e c u t o r t o n a r r o w h e r qu e s t i o n t o r e f

e r o n l y t o C
. H
. a n d

n o tt o c h i l dr e n g e n e r a l l y. When t h e p ro s ecutor

attempted to comply

with the court’s r

uling, she twice a dduced f rom the confuse d Gonza l es t h at s h e had hea rd fr om other member s of the fa mily that appellant wa s “not supposed to be ar ound kids.” On both oc casions, counsel’s objections wer e sustained a nd the jury was instructe d to disreg ard, but his motions for mistrial were overr uled. The pr osecutor tried ag ain: “Did y ou know that Adolfo wa s not supposed to be around [C.H.]? ” Gonzales a nswere d, “Ar ound [ C
. H
. ]
. W e l l , a

p p a r e n t l y I h e a r d a

b o u t s o m e t h i n g . T h e n I w a s j u s t

— I w a s t h e r e a t t h e t i m e an yw a y, y ou know. When he was the re, I was ther e.” A

ppellant ar g ues that his lawy er should have objected to this question and answer a s inadmissibl e hea rsay and improper

char acte r evide nce. Appellant argues that for Gonzales to have bee n awa re of some family

understanding that appellant wa s not to be left alone w ith C.H., there must at s o m e t i m e have been a discussion
a mon g fa mil y me mbe rs of

a pp e lla nt’ s c on du c t w ith C.H
. F ro m this, a pp e lla nt c on c lud e s th a t th is testimony constituted indirect hea

rsay . But the te stimony did not clea rly imply the content of

any
ou t- of -c ourt state me nts . M or e ov e r, the State wa s seek ingto p ro ve the e xiste nc e of the fa mil y understanding , not to prove the truth of any out-of-c ourt conve rsations. See H ead , 4 S.W .3d at 261- 62. A re a s o n a

b ly c o mp e te n t a tt o r

n e y c o u ld b e li e v e th a t th is te s ti mo n y w a s n o t o b je c ti o n a b le as h e ar s ay. Ap pe lla

nt a lso a rgue s th a t th is t e sti mony imp lie d th a t he ha d com mit te d o the r a c ts of misconduct ag ainst C.H. and there fore constituted improper e x trane o u s misconduct evidenc e. Tex. R. Evi d. 404(b). Code of criminal proc edure artic l e 3 8
. 3 7 provides that in prosec utions for13

sexual offenses c ommitt ed ag ainst children under sevente en, evidenc e of other c rimes, wrong s, or acts c ommitt ed by

the def endant a g ainst the child shall be admitted fo r i t s b earing on rele vant matters notwithstanding rul e 4 0 4
. T ex . Code Crim. Proc. Ann. ar t. 38.37, § 2 (West 2005). Appellant’s attorney could re asonably conclude that if Gonzales’s testimony constituted evidenc e that appellant ha d improperly touched C.H. on other occa sions, it was admissibl e under article 38.37. I n point of err or twenty -s i x , appellant c ontends that his lawy er w as ineff ective beca use he did not pre serve err or whe n C. H. t es t i fi ed that appellant had bee n in prison. C.H. testified that in 2001, she saw appellant for the first time sinc e she was eleve n y ear s old. She was asked where she saw him. She answe red, “ Iseen him wa lk—Iwas on the bus downtown a nd Iseen him wa lki ng a c ro ss the str e e t. A nd my g ra ndma ha d to ld h im [ sic ] he was in pr ison.” Appellant’s objection was sustained, and the jury was inst ructe d to disreg ard C.H.’s statement. Appellant a rg ues that his attorney

should have pursue d his o b j ec t i o n t o a neg ative ruling in order to pr eser ve er ror. I t is re a so na

ble to a ssume , how e ve r, that couns e l wa s of the op ini on that th e c ourt ’s ins tr

uc tio n to dis reg ard wa s a de qu a te to c ur e the e rr or (o r w ou ld b e de e me d a de qu a te on a pp e a l) , a nd that a mistrial motion would serve only to draw f urther a ttention to the testim ony . Se e Ke mp v . S tat e , 846 S.W .2d 289, 308 (Tex. Crim. App. 1992) (testimony err oneously

ref err ing to or

imply ing e x trane ous offe nse ca

n be re ndere d harmless by instruction to disreg ard)
. Conclu sion I f appellant’s prese nt attorney had represe nted hi m at t rial, t hat attorney might have made a ll the objections he c o n t en d s s h ould have be en made by trial counsel. B ut the fac t that14

another lawy er w ould ha

ve made differ ent choice s does not in its elf de monstrate that trial c ounsel was inef fec tive. Pa ssm or e v . S

tat e , 617 S. W .2d 682, 686 (Tex. Crim. App. 1981). We do not evaluate the ef

fec tiveness of c ounsel in hindsight, but from counsel’s perspe ctive at trial. Strickland , 46 6 U .S. a t 68 9; Ex

pa rteKun k

le , 852 S.W. 2d 49 9, 50 5 ( Te x. Cr im. Ap p. 19 93 ); Sta ffo rd v . S tat e , 813 S.W .2d 503, 506 (Tex. Crim. App. 1991). And we a ssess the totality of the re prese ntation rather than isolated acts or omissions
. W ilk e rso n v . S tat e , 726 S.W .2d 542, 548 (Tex. Crim. App. 1986). We have a lrea dy

conclude d that most of the objections appe llant urg es should have been made w e r e e it

h e r w it h o u t m e r it

o r o f s u c h d u b io u s me r it

a s to ju s ti f

y a r e a s o n a b ly e ffe ctive attorney ’s dec ision not to object. Whil e we have found two instances in which it can be argued that a hea rsay objection should have be en made , counsel’s f ailure to make the objections does not re nder the totality

of his tr i al re p re sentation ineff ective. F urthermor e, we are not persuade d that the outcome of the trial would have been differe nt had the objec tions been made
. See Strick land , 466 U.S. at 694. Points of er

ror one throug h twenty -six are overr uled. Denial of Mistrial I n h is l a st p oin t of

e rr or , a pp e lla nt c on te nd s the tr ia l c ourt e rr e d by fa ili ng to g ra nt a mistrial after G onzales testified that she had be en told by other members of the family that appellant was not supposed to be le ft alone with children. As we discussed previously , the trial cour t sustained
a pp e lla nt’ s o bje c tio ns to thi s te sti mony a nd ins tr uc te d th e jur

y to d isr e g a rd . T he c ourt

did no t a bu se its discr etion by concluding that a mistrial wa s unnece ssary . Se e Lad d v . S tat e , 3 S.W .3d 547, 567 (T e x. Cr im. Ap p. 19 99 ); Kemp , 846 S.W .2d at 308. Point of error twenty -seve n is overrule d.15 The judg ment of convic tion is affirmed.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pemberton Affir med Filed: Nove mber 10, 2005 Do No t Pu

bli sh