In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-12-00326-CR 

________________________

JOSEPH DALE MOSS, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 251st District Court 

Randall County, Texas 

Trial Court No. 21,941-C; Honorable Ana Estevez, Presiding 

 

August 15, 2013 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Appellant, Joseph Dale Moss, was convicted by a jury of sexual assault,

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enhanced, and sentenced to fifty years confinement. On appeal, Appellant contends (1) 

he was denied his Sixth Amendment right to be confronted with the witnesses against 

him when the trial court admitted a sexual assault nurse examiner report in the absence 

 1

See TEX. PENAL CODE ANN. § 22.011 (West 2011). 
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of the nurse who conducted the examination2 and (2) his counsel was ineffective for 

failing to request a mistrial after extraneous offense evidence was admitted without 

objection. We affirm.

Right to Confrontation

Appellant contends that because he was not allowed to cross-examine the 

Sexual Assault Nurse Examiner who prepared the report admitted into evidence, he 

was denied his right to face-to-face confrontation and cross-examination as guaranteed 

by the Sixth Amendment. See U.S. Const. Amend. VI; Crawford v. Washington, 541 

U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 

Assuming without deciding that the trial court committed error, a Sixth 

Amendment Confrontation Clause violation is subject to harmless error analysis. Rubio 

v. State, 241 S.W.3d 1, 3 (Tex.Crim.App. 2007). Before constitutional error can be held 

harmless, the reviewing court must be able to determine beyond a reasonable doubt 

that the error did not contribute to the appellant's conviction or punishment. TEX. R.

APP. P. 44.2(a); Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d 

705 (1967); Langham v. State, 305 S.W.3d 568, 582 (Tex.Crim.App. 2010) (quoting 

Scott v. State, 227 S.W.3d 670, 690-91 (Tex.Crim.App. 2007)). Therefore, if there is a 

reasonable likelihood that the error materially affected the jury's deliberations, then the 

error is not harmless beyond a reasonable doubt. Rubio, 241 S.W.3d at 3. Ultimately, 

the question is whether the State has proven beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained. Id.

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Because the examining nurse was out of state, her supervising nurse testified in her place.
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In determining whether the constitutional error may be declared harmless beyond 

a reasonable doubt, the following factors are relevant: (1) how important the out-ofcourt statement was to the State’s case; (2) whether the out-of-court statement was 

cumulative of other evidence; (3) the presence or absence of evidence corroborating or 

contradicting the out-of-court statement on material points; and (4) the overall strength 

of the prosecution’s case. Langham, 305 S.W.3d at 582. The question is not whether 

the verdict was supported by the evidence; the question is the likelihood that the 

constitutional error was actually a contributing factor in the jury’s deliberations in arriving 

at their decision, i.e., whether the error adversely affected the integrity of the process 

leading to the decision. Id.

Appellant contends he was harmed because he was prevented from questioning 

the examining nurse regarding several aspects of her SANE report: the absence of 

trauma to the complainant’s genitalia, her documentation of penetration, any sexual 

activity by the complainant prior to the alleged incident, and a standard diagram of a 

female figure depicting the complainant’s injuries by shading certain areas of the 

diagram.

We find nothing in the record that would suggest that “the integrity of the process 

leading to conviction” was adversely affected. See Scott, 227 S.W.3d at 690. First, the 

report indicated there was no indication of trauma and Appellant’s attorney crossexamined the supervising nurse.3

 The report’s remaining evidence of penetration was 

the complainant’s statements to the examining nurse. This evidence was cumulative of 

 3

On cross-examination, Appellant’s attorney asked the supervising nurse “hypothetically can no trauma to 

the female sex organ also be interpreted that no sexual contact occurred?” She answered, “I guess that it 

could be.” 
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the complainant’s direct testimony at trial after which Appellant’s attorney conducted a 

detailed cross-examination into events prior to the incident, the incident itself including 

the sexual assault, and post-incident occurrences. The female diagram depicting the 

complainant’s injuries was also cumulative of more explicit photographs of the same

injuries taken by police prior to the SANE examination and the complainant’s testimony 

on direct/cross-examination. Furthermore, the complainant’s testimony, corroborated 

by the police photographs and investigating officer’s testimony, did not contradict the 

SANE report in any material way. 

Having evaluated the entire record, we cannot say there was any likelihood that 

constitutional error was actually a contributing factor to the jury’s deliberations in arriving 

at their decision given the overall strength of the State’s case and we believe the State 

has proven beyond a reasonable doubt that the error complained of did not contribute to 

the verdict obtained. Thus, assuming error, we conclude Appellant did not suffer harm. 

Appellant’s first issue is overruled.

Ineffective Assistance of Counsel

Appellant asserts his counsel was ineffective for failing to request a mistrial after

the complainant testified during cross-examination that, in the early part of their 

relationship, Appellant was in jail or on work release. Although the complainant’s 

testimony violated the trial court’s ruling on Appellant’s motion in limine regarding 

extraneous offense evidence, Appellant’s attorney did not object, move to strike, or seek 

an instruction to disregard the testimony. The State counters that the record is 

insufficient to conclude Appellant’s trial counsel was ineffective. 
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We examine ineffective assistance of counsel claims by the standard enunciated 

in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant has 

the burden to show by a preponderance of evidence (1) trial counsel’s performance was 

deficient in that it fell below the prevailing professional norms, and (2) the deficiency 

prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability 

that the result of the proceeding would have been different. See Thompson v. State, 9 

S.W.3d 808, 812 (Tex.Crim.App. 1999). Counsel’s conduct is viewed with great 

deference; Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005), and the 

record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d 

at 812.

In the usual case in which an ineffective assistance claim is made, “the record on 

direct appeal will not be sufficient to show that counsel’s representation was so deficient 

and so lacking in tactical or strategic decision-making as to overcome the presumption 

that counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 

828, 833 (Tex.Crim.App. 2002). This is generally the case because a silent record 

provides no explanation for counsel’s actions and therefore will not overcome the strong 

presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506 

(Tex.Crim.App. 2003). The appropriate procedure for raising a claim of ineffective 

assistance is almost always a habeas corpus proceeding. Aldrich v. State, 104 S.W.3d 

890, 896 (Tex.Crim.App. 2003).

This case demonstrates the inadequacies inherent in evaluating claims on direct 

appeal. See Patterson v. State, 46 S.W.3d 294, 306 (Tex.App.—Fort Worth 2001, pet. 
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ref’d). Here, no motion for a new trial claiming ineffective assistance of counsel was 

filed and no hearing was held to determine whether Appellant’s complaint involved 

actions that may or may not have been grounded on sound trial strategy. Courts 

“commonly assume a strategic motive if any can be imagined and find counsel’s 

performance deficient only if the conduct was so outrageous that no competent attorney 

would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 

2005). Here, trial counsel may have made a strategic decision not to object or request 

an instruction to disregard complainant’s cross-examination testimony in order to avoid 

drawing attention to the testimony or appearing disagreeable with the complainant in 

front of the jury. 

To find Appellant’s counsel ineffective on this record, we would have to engage 

in prohibited speculation. See Stafford v. State, 101 S.W.3d 611, 613-14 (Tex.App.—

Houston [1st Dist.] 2003, pet. ref’d). Absent evidence of counsel’s strategy, we cannot 

denounce his actions as ineffective nor can we determine there is a reasonable 

probability that the outcome would have been different. For this reason, Appellant has 

not met either prong of the Strickland test. Appellant’s second issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Patrick A. Pirtle

 Justice

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