## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

____ _______________________ No. 02

- 22

- 00160

- CR

________ _____ ___ ___________

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1615307D
Before Sudderth, C.J.; Birdwell and Womack, JJ. M emorandum Opinion by Justice Womack 

### K ENNETH 

### R

AY 

### R OSS 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 ME MORANDUM OPINION I. I NTRODUCTION A jury convicted Appel lan t Kenneth Ray Ross of aggravated sexual assault of a child

— his n iece , T .W. (Taylor) 1

— and t he trial court sen tenced him to life impri sonment. See Tex. Penal Code Ann. § 22. 021(a)(2)(B). In his sole issue on
app eal, Ross argue s t hat he received ineffective assistance of counsel dur ing the guilt

– innocence phase of his trial when his counsel failed to object to an d seek the exclusion of testimony from a detecti ve that Taylo r ’ s allegations were truthful. Bec aus e we will hold that Ross has not established that his trial counsel ’ s performance was defi cient, w e will affirm

. I I. B ACKGROUND In 2019, police were called to the home o f Ross ’ s mother , D.R . (Del oris), where an argument was taking place between family mem bers. The family members taking part in th e argument in cluded : (1) Deloris

— the matri arch of the family ; (2) Ross

— Deloris ’ s son ; (3) D.S. ( Donna )

— D eloris ’ s daughter and Ross ’ s younger sister; and (4) Taylor

— Delor is ’ s grandda ughter, R oss ’ s niece, and Donna ’ s daughter. The argument appear s to have started between Ross and Tayl or over a missin g basketball goal

. According to Donna, t he argument escalated when D eloris called

1 To pr o tect the complainant ’ s anonym it y , w e u se an a lias to re fer to her and to some o f h e r family members

. See McClendon v. Sta te , 643 S.W.2d 936, 936 n.1 (Tex. Crim. Ap p. [Panel Op.] 19 82).3

Taylor

— who suff ers from ce rebral palsy

— a “ black crippled b itch. ” Eventually, Taylor called the police because, according to her, Ross was be ing

“ very . . . aggressive ” and she wanted to prevent Ross and Do nna “ from phys ically fighting. ” Af t er polic e arr

ive d, both Taylor and Donna reported that they had each been sexually assaulted by Ross when they were children. Taylor explained that she had told police about the abuse because she thought they needed to know “ the back

st ory . . . so they w ou ld und erstand the dynamic of the situation. ” 2 Taylor and Donna later me t with Detective Brandi Ho ward of t he Ma nsfield Police Department, where they recounted th eir allegations of sexual abu se . Ross was ultimately indicted for
aggrava ted sexual assaul t for his abuse of Taylor when she w as a child

. At Ross ’ s trial, Taylor testified that she had moved in to Deloris ’ s home around 1995, when Taylor was approx imat ely e leven yea rs ol d. 3 Initially, only Deloris , Tayl or,

2 According to Taylor, police also responded to arguments involving Taylor and Ross in or around 2005 a nd 2016

— occasions when Ross was allegedly being

“ a g gre ssive ” toward her

. Taylor maintains that she told responding officers in 2005 and 201 6 that Ross ha d sexually assaulted her as a child bu t that she had declined to press charges on those occasions

. When asked at trial wh y s he had told the police ab out the abuse but declined to press cha rges , Taylor reiter ated that she “ felt like they needed to know the back story of why it led up to [her ] calling the polic e. S o they could ge t a b etter understanding of the family d ynamic and what was going on when i t c ame to [Ross] and [her

]. ”

3 Taylor explained that she had moved in with Deloris because her mother, Donn a, “ was on the wrong path ” and was unable to take care of her. At Ross ’ s trial, Donna testified that she ha d been sexually assaulted by Ross in or aro und 1976, when she wa s approximately eight years old , and Ross was approximately sixteen. Because4

Taylor ’ s younger brother, and Delori s ’ s common
- law husband lived in the house. W ithin a year, how e ver, Ross had also moved into the house with his wife and son. Taylor testified that Ros s had sexually assaulted her on several occasio ns at De loris ’ s home, with the abuse starting in 1995 an d continuing “ [f]or a good year to two years. ” She explained that these inst ances followed the same pattern each time and would occur when Ro ss was the only adult in the ho use . S he testified that Ross would instruct his son and her brother to go ou ts ide , that he would make her put on a certain dress once the boys were outside , that he would instruct her to come to his bed, th at he would take her underwear off , and that he would ki ss her and try to insert his penis inside her vagina

. 4 Ta yl or stated that s h e had wanted to report the abuse as a child but that she was afraid that reporting it would cause her to be se parated from her younger brother. 5 A part fro m T aylor ’ s testimony , the jury also heard testimony from Donna, Deloris, Detective Ho ward, and a d i rector of program services for a chil dren ’ s advocacy center. Of note, during Detective H oward ’ s testimony, the detecti ve it is not pertinen t to our analysis , we need not detail the alleg ati ons of Ross ’ s sexual abuse of Donna

. See Tex. R. App. P. 47.1.

4 While Taylor stated t hat Ross had never been able to “ fully insert his penis into [her] vagi na, ” she maintained that his penis had contacted her vagina.

5 Taylor testi fied that Ros s h ad told her that either nobody would believe her report of ab use or that she and her brother would end up with Child Protecti ve Services and that her brother would be adopted but that she would not be adopt ed due t o her cereb ral palsy.5

testified

—

with no obj ect

ion being raised

— that she believed that Taylor ’ s outcry “ was reasonable and truthful with a lot of sensory de t ails that [sh e] thought were prudent to [Taylor] being a vict

im of sexual assault as a child. ” After considering the evidence, the ju ry found Ross guilty of aggravated sexual

assau lt of a ch ild

. Ross ele cted to have the trial court assess his punishmen t , and the trial co urt sentenced him to life imprisonment. This appea l followed. III. D ISCUSSION I n his sole issue , Ross argues that he received ineffective assistance of counsel dur ing the guilt

– innocence phase of his trial when his counsel failed to o b ject to and seek the exclusion of Detective Howard ’ s testimony that Taylor ’ s allegations were

“ tr uth ful. ” A. Standard of Review and Applicable Law The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Ex parte Scott

, 541 S.W.3d 104 , 11 4 (Tex. Cri m. App. 201 7); see U.S. Const. amend. VI. To e sta blish ineffective assistance, an appellant must prove by a preponderanc e of the evidence that his counsel’s representation was deficient and that the deficiency prejudiced the d efense. Stricklan d v. Washin gton , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (19 84); Nava v. State , 415 S.W.3d 289, 307 (Tex. Crim. A pp. 2013). The record must affirmatively demonstrate that the claim has merit. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).6

In evaluati ng counsel’s e ffectiveness under the deficient

- per formance prong, we review the totality of the representation and the particular circumstances of the case to determine whet her counsel provided reasonable assistance under all t he circumstances a nd prevaili ng professiona l norms at the time of the allege d e rror. See Strickland , 466 U.S. at 688

– 89, 104 S. Ct. at 2065; Nava , 415 S.W.3d at 307; Thompson , 9 S.W.3d at 813

– 14. Our review of counsel’s representation is highly deferent i al, and we indulge a strong p resumption tha t counsel’s conduct was not defic ien t. Nava , 415 S.W.3d at 307

– 08

. A court of appeals may not infer ineffective assistance merely from an unclear record or a record that does not show why counsel failed to do s o mething. Menefiel d v. State , 363 S.W.3d 59 1, 593 (Tex. Crim. App. 2012); Ma ta v. State , 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Indeed, t rial counsel “should ordinarily be affor ded an opportunity to explain his actions before being denounced as inef f ective.” Menefield

, 363 S .W. 3d at 593. If trial c ounsel did not have such an opportun ity, we should not conclude that counsel ’ s perform ance was deficient unless the challenged conduct was “s o outrageous that no competent attorney would have engaged in i t .” Nava , 415 S.W.3d at 308. Direc t appeal is usually inade quate for raisin g a n ineffective

assistance

- of

- counsel claim because the record generally does not show counsel’s reasons for any al leged deficient performance. See Menefield , 363 S.W.3d at 592

– 9 3; Thompson , 9 S.W.3d at 813

– 14.7

B. The Complained
- Of Testimony
Ross ’ s com pla int of ineffec tive assistance of counsel is based on his trial counsel ’ s failure to object to or seek the exclusion of testimony regarding the following ex change between the St a te and Detective Howard at tr ial : Q. And so , Detecti

ve, you work thes e cases every day. When an allegation comes in of sexual abuse do you just write a warrant every time one of these allegations comes in? A. No, I don ’ t. Q. In this case did you wr i t e a wa rrant? A. I did, y es . Q. Is that because yo u b elieved y ou ha d probable cause to arrest Mr. Ross for t his offense? A. I believe the victim ’ s outcry was reasonable and truthful with a lot of sensory details that I thought were prudent to her bei n g a vi ctim of sexual assault as a child.
F ollowing that exchange , the State passed the witness, and Ross ’ s trial counsel

cross

- examined Dete ctive Howard. Notably, Ross did not file a motion for n ew trial, nor did he request a hearing to develop the r e cord regarding his in effective

- a ssi stance

of

- counsel claim. C . Analysis Ro ss cites four cases

— Ful ler v. State , 224 S.W.3d 823 (Tex. App.

— Texarkana 2007, no pet .) ; Sessum

s v. State , 129 S.W.3d 242 (Tex. App.

— Tex ar kan a 2004, pet. ref ’ d); Miller v. S t

ate , 757 S.W. 2 d 8 80 (Tex. App.

— Dallas 1988, pet. ref ’ d); and Garcia v.8

State , 712 S. W.2d 249 (Tex. App.

— El Pa so 1986, pet. ref ’ d)

— to sup port his argument that his trial counsel was ineffective for failing to object to or se ek the exclusion of Detective Howard ’ s testimon y t hat Taylor ’ s allegations were “ truthful. ” Tho se cases are distinguishable.
In Fuller , the defendant was convicted of sexual assault of a child and indecency with a child. 224 S.W.3d a t 826. At the defendant ’ s trial, t he State ask ed multi p le witnesses

— the complainant ’ s mother , a police officer, an d a forensic interview er for a children ’ s advocacy center

— whether they believed the complainant was being trut hful with respect to her sex ual

- assault allegations. Id. at 833

– 35. Each wit nes s res p onded that they thought the complainant was tr uthful or credi ble

. Id. On appeal , t he defendant raised a complaint of ineffective assi stance of counsel , contending that his trial cou nsel “ was ineffec tive by not objecting to the S t ate ’ s ‘ bolsterin g ’ of [t h e complainant ’ s] t ruthfulness and credibility. ” Id. at 832. After considering the issue, the Texarkana Court of Appe als held that “ this is one of those rare cases in which the record on direct appea l is sufficient to decide coun sel had no plausi ble tria l strategy for not objecting to the inadmissible testimony and th at his conduct was deficient. ” Id. Accordingly, the court of appeals rever sed the judgment and remanded the case for a new trial. Id

. at 837

. In Sessums , the defendant was convicte d o f agg r avated sexu al assault of a child and indecency with a child. 129 S.W.3d at 244. At his trial, four expert witnesses

“ were asked to explain and then to comment directly on the factors they used in9

de termin ing if [the complain ant] was te lling the tru th. ” Id. at 2 48. During closing arguments, the S tate “ specificall y discussed (without objection) that the [complainant] must not be a liar, because he was able to convince all four of these experts he was telling the truth. ” Id

. On appeal , the defen dan t rai s ed a c omplaint of ineffective assist ance of counsel

. Id. at 24 6. In reversing the defendant ’ s conviction and remanding t he case for a new trial , the Texa rkana Court o f Appeals held that “ [t]here is no con ceivable strategy o r tactic that would ju sti fy al l owing this testimony in front of a jury. ” Id

. at 248.
In Mil ler , the defendant was convicted of aggravated sexual assault. 757 S.W.2d at 880. At his trial, the S t ate asked several questions of witne sses regardi ng the truthfulness of the complain ant ’ s se x ual

- assault al legation

. Id. at 881

– 883. It asked a doctor w ho had examined the complainant his opinion regard ing whether the complainant had been sexually abused, it as ked the complainant ’ s mother w hether she thought he was lying with respect to th e sex u al

- assault allegation, and it asked a counselor whether sh e had an opinion on whether the complai nant had been se xually abused. Id. On appeal , t he defendant raised a complaint of ineffective assi sta nce of counsel

. Id. at 880. After analyzing t he issue , the Dallas Court of Appeals held that it could “ glean no sound trial strategy in defense counsel ’ s failure to object to the extensive, inadmiss ible testimony concerning the only real issue at trial

—

c omplaina nt ’ s credibility. ” Id . at 884. Accord ing

ly, t h e court of appeals reversed the trial court ’ s judgment and remanded the case for a new trial. Id. at 885.10

Finally, in Garcia , the defendant was convicted of burglary of a habitation with intent to co mmit the crime of indecency with a child. 712 S.W .2d a t 251. At the defendant ’ s trial, a dete ctive and a s o cial worker each testified “ with regard to their opinion s as to the truthful ness of the testimony of the complaining witness es . ” Id. at 253. The detective in that case was specific ally asked w het her i t was his impression that the complainant had been sexually abused. Id. at 251. On appeal , the defendant raise d a complaint of ineffective assistance of counsel

. I d. at 2 53. In reversing the defend ant ’s conviction and remanding t he case for a n ew trial , the El Paso Court of Appeals held that the defendant ’ s co unsel was deficient by not objecting to the detective ’ s and social worker ’ s respective testimony regarding the truthfulness of t he complaining witnesses. Id.
In the four c ases cited by Ro ss, the S tate asked questions designed to elicit testimony regardin g the truthfulness of the complainant s ’ respective sexual

- assault al lega tions

. See Fuller

, 224 S.W.3d at 833

– 35 ; Sessum s , 129 S.W.3d at 248 ; Miller , 757 S.W.2d at 881

– 883 ; Garcia , 712 S.W. 2d at 25 1 , 253

. Here, in contrast, the State did not ask Detective H o w ard to opine on Taylor ’ s truthfulness; rather, Detective How ard was a sked whether she had had probable cause to arrest Ross, and in

answer ing that question, Detecti ve Howard vo lunteered th at Ta y lor ’ s outcry wa s

“ reasonable and truthful. ” Moreo ver, in the four cases cited by Ross, there w as repeated testimony from mu lti ple witnesses regarding the truthfulness of the complainant s ’ res pective sexual

- assault al lega tions

. See Fuller , 2 24 S.W.3d at 8 33

– 35 ;11

Sessum s , 129 S.W.3d at 248 ; Miller , 757 S.W .2d at 881

– 883 ; Garcia , 712 S.W.2d at 251, 253

. Here, in contrast, Ross ’ s complaint relat es to only one instance of improper testimony from o ne witness. See Ingham v. State , 679 S.W.2d 50 3, 509 (Tex. Cri m . App. 1984) ( “ An i solated failure to object to ce rtain procedural mistakes or improper evidence does not constitute ineffective assistance of counsel. ” ); Alberts v. S t ate , 302 S.W.3d 495, 507 (Tex. App.

— Texarkana 2009, no pet.) (noting th at “ an isolated f ailure to object to im proper evidence does not con stitute ineffective assistance of counsel ” and distinguishing Fuller , a case where the references to the complainant ’ s truthfulness “ were not isolated incidents ” ). The circumstances presen ted here more cl o sely resemble the circumstances presented in Herre ra v. State , No. 01

- 08

- 00615

- CR, 2009 WL 1813093 (Tex. App.

— Houston [1st Dist. ] June 25, 200 9 , no pet.) (mem. op., not de signated for publicat ion )

. There, t he defendant was convicted of ag gra vated sexual a ssault of a child. Id. at *1. At the defendant ’ s trial, a detective was asked whether the complainant’s res ponses to the detective ’ s questions were cons istent with some one who had b een sexua lly assaulted. Id. at * 5

. The detective respon ded , “ Well, it ’ s hard to say consistent because everybody is differ ent; but I can say I had absolutely no reason to doub t the things [the complainant] was telling me were true. ” I d. On appeal, the defendant cite d Fuller to suggest that his counsel ren de red ineffective a ssistance by not objecting to the detective ’ s test imony regarding the

c omplainant ’ s truthfulness

. Id

. at *6. The First District Court of Appeals found Fuller12

to be distinguishable, noting th at “ [t]he difference between this case and Full er . . . lies

n o t with each witness ’ s answer, but with the question that el icited it. ” Id. The court of appeals noted that the State ’ s question as to whether the complainant ’ s re sponses were consistent with some one who had been sexually assaulted sought per missible

tes ti mony. Id. The court furth er rea soned, “ Given tha t the question itself was not objectionable , and the witness ’ s response was brief and occurred only in passing , [the defendant ’ s] trial counse l could have reasonably conclude d that an objec tio n would have h ighlighted the unsolicited testimony to his client ’ s detriment

. ” Id. As s uch, the court of appeals held that the defendant ’ s trial counsel had not been ineffective

. Id

. Just as the prosecut or’s question in Herrera that led to the compla ine d

- of testimo ny did not seek to elicit testimony regarding the tr uthfulness of the
comp lainant ’ s allegations , her e, the State ’ s question that le d to the complained

- of testimony

— whether Detective Howard had p robable cause to arrest Ross

— was not a que stion se eking an ans we r regarding Taylor ’ s truthfulness

. Moreover , just as the witne ss ’ s r esponse in Herrera “ was brief and occurred only in passing, ” here, Detective Howard ’ s response was brief and isolated to th at o ne occurrence. Id. Ross ’ s trial counsel, lik e the trial co unsel in Herr era , may have “ reasonably concluded t hat an objection would have highlighted the unsolicited tes timony to his client ’ s detriment

. ” Id

. ; see Weatherly v. State , 283 S.W.3d 481, 487 (Tex. App.

— Beaumont 2009, no pet.) (rejecting ine ffective

- as sis tance

- of

- counsel complaint where counsel explained that he had no t objected to complained

- of testimony because “ he did not want to call13

attention to the damaging testimony ” ). Thus, based on t he silent record bef ore us, we

cannot conclude tha t Ross ’ s tr ial counsel ’ s failure to object to or ex clude Detecti ve Howard ’s testimony was deficient. See W urtz v. S t ate , No. 02

- 22

- 00010

- CR, 2022 WL 17841128, at *4 (Tex. App.

— Fort Worth Dec. 22, 2022, no pet.) (mem. op., not designated for publica tion ) ( “ And the re cor d, such as it is, does not allow us to conclude th at the challenged conduct was so outrageous that no competent attorney would have engaged in it. ” ); Brantley v. S t ate , No. 02

- 19

- 00349

- CR, 202 1 WL 3679239, at *4 (Tex. App.

— Fort Worth Aug

. 19, 2021, pet. re f ’ d) (mem. op., not designated for public ation) ( “ Ultim ately though, we may not speculate regarding why trial counsel acted as he did and must presume that a reasonable trial strategy supporte d his conduct. ” )

. We overrule Ross ’ s sole issu e. IV. C ONC LU SIO N Having overruled Ross ’ s sole issue, we affirm t he trial court ’ s judgment

. /s/Dana Womack Dana Womack Justice D o Not Publish Tex. R. App. P. 47.2(b) Delivered : June 2 9 , 2023