Opinion issued December 22, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00824-CR

———————————

KEVIN WIMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Case No. 1431168

MEMORANDUM OPINION

Appellant Kevin Wimes was convicted of aggravated sexual assault of a 

child younger than fourteen years of age, and he was sentenced to 40 years’ 

confinement. In three points of error, he complains that his trial counsel provided 

ineffective assistance. We affirm. 
2

BACKGROUND

The allegations against appellant in this case are that he sexually assaulted 

his daughter, Jane.1 

A. State’s case

Jane’s mother, Lacrisa, testified that she is the mother of five children, three 

boys and two girls, and that she has lived in Florida since 1997. She is now 

married and a stay-at-home mom. 

Lacrisa met appellant in 1997, and they dated for three years. They had two 

daughters during their relationship, Jane and her younger sister, Ann. Lacrisa and 

appellant broke off their relationship when Jane was three and Ann was two. After 

their break-up, appellant moved to Texas. He did not financial support the girls, 

and he only saw them once or twice over a period of years. 

In September 2008—when Jane was starting the fourth grade and Ann was 

starting the third grade— appellant came back into their life. Lacrisa testified that 

it was at a very hard financial time in her life; their car was being repossessed, they 

were being evicted, and she could not pay their utility bills. Appellant explained to 

her that he had gotten his life together in Texas, had a stable place to stay, and a 

“young lady that is helping him out.” They agreed that appellant could take the 

girls back to Texas for a while to live with him until Lacrisa got financially 

 

1 We use pseudenyms for minors in this opinion. See Tex. R. App. P. 9.10(a)(3).
3

situated. While the girls were in Texas, Lacrisa lived in a hotel room with one 

pull-out bed with her husband and other three kids for the first one and one-half 

years, and then they got an apartment. She testified that it was a difficult choice 

letting the girls move to Texas with their father, but she believed they would have 

stability and resources that she lacked at home.

While the two girls were with appellant in Texas, Lacrisa and the girls spoke 

on the phone regularly. Appellant also sent Lacrisa pictures of the girls a couple of 

times. Lacrisa thought the girls appeared happy. She never got a sense from the 

girls during her conversations that there was anything wrong, and she never heard 

any allegations of abuse. 

At one point, Jane called Lacrisa and said that she was ready to come home. 

Lacrisa and her husband were already settled into their apartment and more 

financially stable, so they welcomed the opportunity for the girls to move back. In 

July 2010, Lacrisa and her husband drove the thirteen hours to Baytown, Texas,

where appellant and the girls were living, and checked into a hotel to rest because 

they were tired from the drive. Appellant then started calling Lacrisa, saying: 

“Bitch, come get these kids.” She and her husband immediately went to 

appellant’s house. 

When they arrived at appellant’s house, he was “intoxicated, in the street, 

yelling bitches and whores, and acting like he wanted to fight.” Several of 
4

appellant’s friends were also out in the street, as well and Jane and Ann. Lacrisa 

got her girls into the car, they stayed the night at a hotel, and then returned to 

Florida. When they got home, Lacrisa asked the girls if “anyone had touched them 

inappropriately, and they stated no.” That question was prompted by the fact that 

when she arrived at appellant’s house to pick the girls up, there were “just several 

guys hanging outside . . . drinking; and something just didn’t look right.” She felt 

there were too many men and that her daughters were dressed in inappropriate tight 

shorts that she would never have dressed them in. 

The girls settled back into school in Florida, and their relationship with their 

mother was alright, although Ann was somewhat withdrawn. Lacrisa testified that 

she believed it was caused by the transition from Texas to Florida. After the girls 

moved back to Florida, they talked to appellant on the phone a couple of times.

Something came to her attention on January 7, 2011 that caused Lacrisa to 

ask Jane if she had been sexually abused. Jane responded yes, and Lacrisa called 

911. She was told that if the abuse took place in Texas, she would have to call a 

Child Abuse line, which she did. The next morning, Florida Department of 

Children and Families (DCF) caseworkers came to their apartment to explain the 

investigation process. They set up a forensic pathologist appointment for the girls, 

and a medical appointment for them to be examined. Jane also started therapy.
5

The Baytown Texas Police Department also opened an investigation. 

Detective Crowell, the investigating officer, worked in the Crimes Against 

Children Division and testified that he had received training involving 

investigation, case management, and child interview techniques. He also attended 

continuing education courses on child sexual assault investigations. 

Crowell’s involvement in appellant’s case began when he received an initial 

Child Protective Services (CPS) report alleging sexual conduct between Jane and 

appellant. He also received a case file from the sheriff’s office in Florida, which 

contained the original offense report, and supplemental reports, and medical and 

interview-type paperwork relating to the investigation of Jane’s allegations. He 

contacted Lacrisa and the people who conducted the Florida investigation. When 

Crowell reached out to him, appellant provided a verbal statement. Eventually, 

Crowell decided that the case warranted presentation to the district attorneys’ 

office, and he issued a warrant for appellant’s arrest. 

Jane testified at trial. At the time of trial in September 2014, she was 

15years old. She testified that the first time she recalls meeting her father was the 

beginning of the fourth grade, when she was nine years old and he came to visit in 

Florida. She and her sister then rode on a bus with appellant to Texas. She was 

excited because Baytown was a new town and she was excited to see her father. 

When they arrived, Jane first lived in a one-bedroom apartment with her sister 
6

Ann, appellant, and appellant’s wife, Latoyia. Appellant and his wife slept in the 

bedroom, and Jane and Amy slept on an air mattress on the floor. After that 

apartment, they moved to a different one-bedroom apartment, and eventually to a 

three-bedroom apartment. Finally, they moved into a house, and then later to a 

different house. 

Jane testified that “something bad” happened to her while she was living in 

Baytown. The first time “something bad” happened was when she was 10 years

old, they were living in the second one-bedroom apartment, and it was Christmas. 

It was dark outside, and after midnight. She was there with Ann, appellant, 

Latoyia, and her cousin, Jack. Jack and Ann were asleep, and Latoyia was in her 

room. Jane testified that she was sitting on the couch and appellant came out and 

asked if she wanted to go with him to a friend’s apartment in the same complex to 

get some picture frames. When they got to the apartment, it was dark, empty, and 

Jane could tell that the person who had lived there had moved out. 

Rather than pick up the frames, appellant took Jane into the bedroom and 

said they “were just going to lay down for a little bit.” When they laid down sideby-side, appellant told Jane to get on top of him. After Jane complied, appellant

started talking about Lacrisa and asking if Jane wanted to move back home to 

Florida. Jane answered “no” because she had not been in Texas that long and was 

happy there. Appellant told Jane that was good because her mother “doesn’t love 
7

me the way he does.” Appellant then told Jane to rock back and forth on top of 

him while she was sitting on his chest. Jane testified that appellant then “put his 

hands on my waist and pushed me down on his parts.” With the aid of a male doll, 

Jane identified appellant’s “parts” as his penis. 

Jane testified that appellant then went into the bathroom to pee, and returned 

with his pants pulled down. At this point Jane was scared because she “knew 

something bad was going to happen.” She thought about running, but was scared 

she would not get far. Appelant pulled Jane up on her knees and told her to put his 

penis in her mouth while he held onto the back of her head with his hands. She 

testified to what his penis looked like and that she complied. After a while he 

stopped and pulled his pants back up. When they walked back to their apartment, 

Ann and Jack were still asleep and Latoyia was still in her bedroom awake, as Jane 

heard her laugh when appellant went into the bedroom. Jane went back to the 

couch. Ten minutes later, appellant came back out of the bedroom and took Jane 

back to the empty apartment. 

When they got there, appellant told Jane to take her pants off. Appellant 

took Jane into a bedroom closet, got on top of her, and “put his parts inside of me.” 

Using an anatomically correct doll, Jane testified that appellant penetrated her 

vagina. Appellant used his hands to put his penis partway inside of her, and she 

could feel something wet coming outside of her vagina. 
8

When they put their clothes back on and left, appellant told her he would tell 

her what he got her for Christmas. That did not make her feel better, and she was 

still in a lot of physical pain when they got back to their apartment, but it did not 

last very long. She and appellant never discussed what happened, and nothing 

happened again while they were still living in that one-bedroom apartment. She 

did not think anything like that would happen again. 

Jane testified that after they moved into the three-bedroom apartment, 

appellant came and got her out of her bedroom one night and took her into his 

bedroom. Her step-mother was at work, so they were alone in appellant’s room. 

He told her to lie down on the bed, to take her pants off; he pulled his penis out of 

his boxer shorts and again penetrated her vagina. She testified that it hurt and 

again she felt something moist coming out of her body. She was supposed to go to 

church the next morning with her aunt, but did not because she felt like she could 

not walk and did not have feeling in one leg. Her aunt returned her to her 

apartment after she collapsed and wanted to take her for medical attention, but 

appellant said no, that she was alright and took Jane and Ann inside and shut the 

door. There were no more incidents while they lived at that three-bedroom 

apartment. 

When they next moved into their first house, Jane testified that there were no 

incidents of appellant touching her there. When they moved into their last house, 
9

Jane testified that the incidents started up again. Latoyia stayed with her mother 

Monday through Friday so that she would not have to drive so far to work during 

the week. When she was gone, Jane testified that appellant would come into the 

room she shared with sister in the middle of the night to get her. More than once 

he did this and took her to his bedroom and told her to put his penis in her mouth. 

He did not penetrate her vagina at any point while they lived at that house, but 

sometimes he would make her kiss him, “Like, make-out kiss.” 

Jane testified that she never told her mother on the phone that anything was 

wrong because she and Ann were only allowed to talk on the phone with their 

mother when they were in appellant’s room where he could hear them. She never 

considered telling Latoyia what was going on because she would “just go back and 

tell him; and then he would just deny it, and we would get in trouble for it.” 

She said she first disclosed to her mother what had happened after they 

moved back to Florida and were watching an episode of “Law and Order” that 

involved sexual abuse. Her mother immediately broke down and cried. She did 

not tell her mother any details about any of the incidents. She did explain the 

details with others, such as the forensic interviewer, and the doctor that examined 

her. 

Jane testified that she never said “no” over the years these incidents 

happened because she felt she was small and did not have a choice. She reached 
10

the point that she no longer enjoyed living with her father because she did not feel 

safe having to wonder every night about the next time he was going to come into 

her room. Jane was cross-examined about why she gave more details about more 

incidents during her court testimony than during her initial interviews. 

Doctor Danielle Madera, a psychologist with the Harris County Children’s 

Assessment Center also testified. She previously worked as a child forensic 

interviewer in Florida, working with children dealing with physical and sexual 

abuse. Madera explained that oftentimes during the forensic interviews, there is 

only partial disclosure, and that more information comes out over time. Also, they 

are constrained during the interviews by only being able to answer neutral, factgathering questions that are asked, but not cover every scenario. She testified to 

her opinion that Jane’s demeanor in court was “very consistent with a child that’s 

been sexually abused and traumatized and now faced with sitting in the room with 

a person who raped her.” She testified that she had not “completed any studies, 

case studies, research, anything like that with regard to children’s performance in a 

courtroom,” but that she has “had a chance to observe children testify previously.” 

On cross-examination, she conceded it was possible that Jane “appeared 

traumatized on the witness stand” because she “just couldn’t face her father if she 

wasn’t being truthful.” She also clarified that she doesn’t not know if Jane was the 

victim of sexual abuse or not, and that she was not testifying as to an opinion of 
11

that. She believes the way in which Jane “articulated herself is consistent with 

sexual abuse,” but that “the only two people that know whether or not that incident 

happened are the victim and defendant.” 

Finally, the State called Ms. Rita Deorio, who testified that she lives in 

North Carolina, and that the police and USAA fraud department are currently 

investigating how a $2,500 check was issued from her account to appellant. She 

has never met appellant and did not write him a check. 

B. Appellant’s case 

Jane’s cousin Kenny testified on appellant’s behalf. He and appellant are the 

same age, and Kenny lived with appellant off-and-on over the years. He testified 

that on Christmas Eve 2008—the night of Jane’s first allegation—he was on the 

apartment porch drinking with friends until at least 1:00 a.m. Christmas morning. 

He usually slept on the couch at that apartment, but gave no specific testimony 

about where he slept that night. He testified to his belief that things seemed 

“normal” between appellant and Jane when he lived with appellant.

Appellant also called Dr. Rebecca Girardet, a child-abuse pediatrician who 

leads the division of Child Protection Pediatrics at the University of Texas Medical 

School. She testified that “approximately 95 percent of children presenting for 

sexual abuse don’t have any physical signs of trauma.” She explained that genital 

and anal tissues heal quickly, and oftentimes completely without scarring. Pre-
12

puberty scars are much harder to detect once a girl goes through puberty due to 

estrogen changes. Girardet testified that she reviewed Jane’s original examiner’s 

report and the photographs from that exam. The report stated there were tears in 

the hymen; but it is not clear from the photographs if the hymen had tears or there 

were folds, because when hymens estrogenize, they get folds. In her experience, 

tears in a child can only be caused by penetrating trauma. She clarified that 

activities like riding a bike and taking “straddle falls” may cause bruising of the 

outer labia, but not affect the interior protected area. 

Appellant called Sonya Scott with CPS who opened a 2009 physical abuse 

case regarding Jane. Her records indicate that Jane’s initial outcry was to school 

staff. Scott visited the home and Jane denied the outcry. Scott did not see 

anything of concern in the home. After talking to appellant, Jane, Ann, Scott, and 

school staff, Scott closed the investigation based on lack of evidence to support the 

allegation. Both Jane and Ann denied physical or sexual abuse. Jane reported that 

she was happy. 

Finally, appellant testified on his own behalf. He testified that when he and 

Lacrisa split up, the girls were in CPS care. While he did not take Jane and Ann

when he split from their mother, he talked to them on the phone occasionally. He 

testified that he went and got them some weekends when he still lived in Florida 

before he moved to Texas in 2002. He saw them once after he moved, in 2005, for 
13

his father’s funeral in Georgia. He next saw the girls in 2008 when he visited 

relatives in Florida, and his cousin took him to see Lacrisa and his daughters. 

Later that weekend, Lacrisa and he agreed that he could offer the girls more 

stability in Texas, so they would return home with him.

He testified that on Christmas Eve of 2008—the night Jane alleged the first 

abuse happened—the girls each opened one gift at midnight while appellant and 

Latoyia were cooking for the next day. Kenny and several friends were outside at 

that time. According to appellant, the girls then went to sleep about 1:30 or 2:00 

am. 

He testified that he received a home visit from CPS in 2009, and that he 

cooperated. According to appellant, the girls could talk to their mother privately 

on the phone whenever they wanted. He also claimed that in 2010, when Lacrisa 

came to pick up the girls, they were just going with her for a summer visit—not to 

move back to Florida. 

He first heard the allegations about sexually assaulting Jane in January of 

2011 through a phone call from Lacrisa. Appellant was “upset and furious.” He 

was upset because his “daughters were sexually molested,” but he “kn[e]w it 

wasn’t from me.” He denied the allegations, but advised Lacrisa to take the girls 

directly to the hospital. 
14

Appellant believes that Jane accused him of sexual assault because “she was 

told to do it.” He believes that Lacrisa was angry about appellant taking tax 

deductions for the girls when Lacrisa wanted to take the tax deductions. He and 

Lacrisa argued about this topic before the sexual assault allegations came up. 

Appellant testified that he loves his daughters and would never hurt them. It 

hurt him to see Jane testify because “they still putting her though all this,” and 

because “they is someone that’s making her say all these things, because I know 

my daughter.” He testified that he never touched Jane in a sexual way, and never 

asked Jane to touch him in a sexual way. He has no idea what Jane is talking about 

with the empty apartment or the frames that they were supposedly supposed to 

collect. He testified that Jane was not truthful in her testimony about the sexual 

assaults. 

He first testified to his belief that Jane was sexually assaulted by someone 

else in Florida, if she was sexually abused at all. He later testified to his belief that 

she was actually making the whole thing up. From his perspective, Lacrisa 

convinced Jane to lie because Lacrisa was motivated by wanting to keep the girls 

so she could collect tax refunds associated with the girls if they stayed with her.

ISSUES ON APPEAL

Appellant complains his trial counsel was ineffective in three points of error:

1. “Appellant received ineffective assistance of counsel when 

counsel failed to object to the expert testimony of the State’s 
15

expert that the courtroom behavior of the complainant was 

consistent with a child who has been abused and is sitting in 

the courtroom with a person who raped her.”

2. “Appellant received ineffective assistance of counsel when 

counsel failed to object to the expert testimony of the State’s 

expert that in effect gave the opinion the complainant was 

telling the truth.” 

3. “Appellant received ineffective assistance of counsel when 

counsel failed to attack the testimony of the State’s expert by 

requesting a hearing on the admissibility of the testimony when 

the expert testified there were no studies to support her 

opinion.” 

STANDARD OF REVIEW

We consider claims of ineffective assistance of counsel under the two-prong 

test adopted in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984). To prevail on an ineffective assistance of counsel claim, appellant must 

show that (1) counsel’s performance was deficient, meaning it fell below an 

objective standard of reasonableness, and (2) the deficiency prejudiced the 

defendant, meaning there was a reasonable probability that, but for the counsel’s 

deficient performance, the results of the trial would have been different. Id.; Ex 

parte Napper, 322 S.W.3d 202, 246, 248 (Tex. Crim. App. 2010). The burden is on 

appellant to prove by a preponderance of the evidence that counsel was ineffective. 

See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

The first prong of Strickland requires that the challenged acts or omissions 

of counsel fall below the objective standard of professional competence under 
16

prevailing professional norms. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. 

App. 2010). Appellate courts are highly deferential to trial counsel and avoid 

evaluating counsel’s conduct in hindsight. Ingham v. State, 679 S.W.2d 503, 509 

(Tex. Crim. App. 1984). Thus, courts must “indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance; 

that is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial strategy.” 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2061.

The second prong of Strickland requires a reasonable probability that the 

outcome of the case would have been different. Id. at 694, 104 S. Ct. 2068. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome, meaning that counsel’s errors must be so serious that they deprive 

appellant of a fair trial. Smith v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App. 

2009).

Allegations of ineffectiveness must be firmly founded in the record, and the 

record must affirmatively demonstrate the ineffectiveness. Mallett v. State, 65 

S.W.3d 59, 63 (Tex. Crim. App. 2001). “In the rare case in which trial counsel’s 

ineffectiveness is apparent from the record, an appellate court may address and 

dispose of the claim on direct appeal.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. 

Crim. App. 2011). When the record is silent as to the reasoning behind an alleged 
17

deficiency by trial counsel, “we will assume that counsel had a strategy if any 

reasonable sound strategic motivation can be imagined.” Id.; see also Garcia v. 

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[I]n the absence of evidence 

of counsel’s reasons for the challenged conduct, an appellate court . . . will not 

conclude the challenged conduct constituted deficient performance unless the 

conduct was so outrageous that no competent attorney would have engaged in it.”).

ANALYSIS

All three of appellant’s issues involve complaints about counsel’s handling 

of Dr. Madera’s testimony. The constitutional right to counsel in a criminal 

prosecution exists to protect the fundamental right to a fair trial. Strickland, 466 

U.S. at 684, 104 S. Ct. at 2063. The crux of appellant’s three points of error boils 

down to the complaints that (1) Madera’s statement that Jane’s courtroom 

demeanor was “consistent with” a child who has been sexual abused was an 

unobjected-to, improper comment on Jane’s credibility, and (2) that counsel should 

have requested a hearing to challenge Madera’s qualifications to make that 

statement because it was not based on scientific studies.

“The benchmark for judging any claim of ineffectiveness must be whether 

counsel’s conduct so undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 

S.Ct. at 2064. “This right does not mean errorless or perfect counsel whose 
18

competency of representation is to be judged by hindsight.” Robertson v. State, 

187 S.W.3d 475, 483 (Tex. Crim. App. 2006). 

Appellant argues that the record “shows a breakdown of professional 

competence in the area of expert testimony.” Specifically, he takes issue with 

Madera’s testimony that Jane’s demeanor was consistent with a child who had 

been abused and was sitting in the courtroom with someone who raped her, while 

Madera admitted that no studies supported her conclusion. Appellant argues that 

this testimony runs afoul of cases holding “it is error to allow an expert witness to 

comment on another witness[’s] credibility.” In support, he cites five cases: Yount 

v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993) (“We hold that Rule 702 

does not permit an expert to give an opinion that the complainant or class of 

persons to which the complainant belongs is truthful.”); Lane v. State, 257 S.W.3d 

22, 27 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (finding counsel’s 

representation deficient because he failed to preserve complaint for review about 

one doctor’s testimony that “false accusations of childhood sexual assault are very 

rare” and a counselor’s testimony that she had determined that the complainant 

was telling the truth); Miller v. State, 757 S.W.2d 880, 884–85 (Tex. App.—Dallas 

1988, pet. ref’d) (reversing for new trial because counsel’s assistance was 

ineffective by failing to object to several witnesses’ opinion testimony that child 

was generally truthful and was telling the truth about being sexually abused, and 
19

expert’s opinion testimony that expert would be able to tell if child was being 

untruthful, which was especially harmful in light of lack of physical evidence); 

Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d) 

(reversing for new trial because counsel’s assistance was ineffective in failing to 

object to the “the witnesses [who] were asked to explain and then to comment 

directly on the factors they used in determining if this child was telling the truth” 

because appellant was likely harmed by counsel’s “error in failing to object to 

extensive, inadmissible, and critical testimony,” given that the only other testimony 

about appellant came from the victim); Fuller v. State, 224 S.W.3d 823, 836 (Tex. 

App.—Texarkana 2007, no pet.) (reversing for new trial because “the victim’s 

credibility was the only real issue at trial and counsel repeatedly or entirely failed 

to object to the introduction of testimony on the truthfulness and credibility of the 

victim’s allegations” by numerous witnesses such that counsel’s conduct in 

“allowing the State unfettered and unchecked bolstering of the victim was so 

outrageous that no competent attorney would have engaged in it”).

The State responds that these cases are inapposite. It argues that, [co]ntrary 

to appellant’s assertions, Dr. Madera did not comment on whether the complainant 

was telling the truth,” and the State disputes the suggestion that appellant “would 

not have been convicted, but for her testimony.” 
20

“The two prongs of Strickland need not be analyzed in a particular order.”

See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). We need 

not decide if appellant’s counsel’s performance was deficient because we agree 

with the State that—examining the record as a whole—appellant has failed to carry 

his burden to demonstrate prejudice. “The Court of Criminal Appeals has noted 

that the standard for showing prejudice on a claim of ineffective assistance of 

counsel is more demanding than the showing needed to prove harm under the 

Rules of Appellate Procedure.” Thomas v. State, 445 S.W.3d 201, 210 (Tex. 

App.—Houston 2013, pet. ref’d) (citing Martinez, 330 S.W.3d at 903). “To 

prevail, appellant must show a reasonable probability that but for his counsel’s 

deficient performance, the result of the proceeding would have been different. Id. 

(citing Bone, 77 S.W.3d at 833). 

Determination of a witness’s credibility and truthfulness lies within the 

province of the jury. Yount, 872 S.W.3d at 710. Although Madera opined that 

Jane’s demeanor was “very consistent with a child that’s been sexually abused and 

traumatized and now faced with sitting in the room with a person who raped her,” 

she acknowledged explicitly that credibility and truthfulness is a matter for the 

jury, stating that she does not have any basis to know if Jane was sexually abused 

or not, and agreeing that it is for the “jury to decide.” 
21

Here, there was physical evidence of sexual assault introduced into 

evidence, and Jane gave detailed testimony about appellant’s actions. Unlike the

witnesses in the cases appellant cites, Madera was clear that she was in fact not 

opining on whether Jane was telling the truth, and she agreed that Jane’s courtroom 

demeanor could also be consistent with a child that is lying and does not want to 

face the person she is falsely accusing. The State elicited testimony during 

Madera’s direct examination that she was not opining on whether Jane had been 

sexually abused and that her opinions about her observations were not based on 

studies, but only on her experience. Appellant’s counsel followed up in crossexamination by eliciting again testimony that Madera was not opining that Jane 

had been abused, and that Madera has had “encounter[s] where a child was not 

being truthful.” 

Given this context, appellant has not demonstrated that had his counsel

objected to Madera’s testimony or requested a hearing on her qualifications, there 

is a reasonable probability that the outcome of the case would have been different. 

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. 

We overrule appellant’s three ineffective assistance of counsel points of 

error. 

CONCLUSION

We affirm the trial court’s judgment.
22

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).