Affirmed and Memorandum Opinion filed August 14, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00750-CR

ANTHONY WAYNE SONNIER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 11-CR-3102

MEMORANDUM OPINION

In four issues, appellant Anthony Wayne Sonnier challenges his conviction 

of aggravated sexual assault of a child and his sentence of thirty-five years in 

prison. Appellant argues that the jury charge erroneously omitted a community 

supervision instruction, that his attorney provided ineffective assistance on the 

community supervision issue, and that the trial court incorrectly denied his motion 

for new trial raising additional complaints of ineffective assistance of counsel. We 
conclude, however, that appellant was not entitled to a community supervision 

instruction, that his attorney’s performance regarding community supervision was 

not deficient, and that the trial court did not abuse its discretion in denying his 

motion for new trial. We therefore affirm.

BACKGROUND

Appellant was charged with continuous sexual abuse of a young child. Tex. 

Penal Code Ann. § 21.02 (West 2011). A.W., the complainant, is the daughter of 

appellant’s cousin. In July 2011, A.W. informed her mother and subsequently 

police officers that she had been sexually assaulted by the appellant numerous 

times over the course of several years. At trial, the complainant testified that the 

first instance occurred in 2003, when she was nearly eight years old, and that the 

acts continued until 2011, when she was fourteen. The complainant’s mother 

testified regarding the relationship between herself, her daughter, and the appellant, 

as well as to her daughter’s 2011 acknowledgement of the appellant’s conduct.

Her mother also testified that A.W. had previously indicated to her that the 

appellant was abusing her, but she had recanted the accusation the next day.

Appellant had also been charged with the sexual assault of another child in a 

separate case. Although appellant’s trial counsel did not intend to allow the 

alleged victim of this extraneous offense to testify, appellant testified at trial that 

he had never sexually abused any child. The State argued that this statement

“opened the door” to allow the other victim to testify concerning appellant’s

alleged sexual conduct. The trial court allowed the other victim to testify about 

several alleged instances of sexual contact with appellant. Appellant contends that 

the complainant in this case and the other victim are in collusion, but several 

witnesses testified that the two victims had never seen each other. 

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At the close of the guilt-innocence phase of the trial, the court instructed the 

jury regarding the offense of continuous sexual abuse and the lesser included 

offense of aggravated sexual assault of a child. A person commits the offense of 

continuous sexual abuse of a young child if, during a time period of thirty or more 

days, that person commits two or more acts of sexual abuse of a child. Tex. Penal 

Code Ann. § 21.02(b)(1). At the time each act is committed, the actor must be 

seventeen years of age or older and the victim or victims must be younger than 

fourteen. Id. § 21.02(b)(2). The offense became effective on September 1, 2007. 

Id. § 21.02; Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 

Tex. Gen. Laws 1120, 1127, 1148. A person commits the lesser included offense 

of aggravated sexual assault if he intentionally or knowingly causes the penetration 

of the sexual organ of a child younger than fourteen. Tex. Penal Code Ann. §

22.021(a)(1)(B), (a)(2)(B) (West 2011). 

The jury found appellant not guilty of the continuous sexual assault charge 

but found him guilty of the lesser included offense of aggravated sexual assault of 

a child younger than fourteen. He was sentenced to thirty-five years in prison.

Appellant then obtained new counsel and filed a motion for new trial. In his 

motion, appellant argued that his trial counsel was ineffective for four reasons, 

three of which he also raises on appeal. First, appellant argued that his counsel 

failed to investigate the criminal background of the complainant’s mother. 

Second, appellant asserted that his trial counsel failed to interview witnesses who 

could have established that there was a relationship between the complainant and 

the other alleged victim. Third, appellant alleged that his trial counsel failed to 

obtain evidence and investigate witnesses who could have demonstrated that

appellant was living in Austin during part of the time period in which he was 

accused of committing sexual offenses against the complainant.

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During the hearing on the motion for new trial, appellant’s trial counsel was 

given an opportunity to respond to the allegations of ineffective assistance. He 

indicated his trial strategy regarding the first two allegations. First, trial counsel 

testified that he did not want to discuss the criminal history of the complainant’s 

mother because he feared that an honest response by her would bolster her 

credibility to the detriment of appellant. Second, trial counsel indicated that he did 

not interview witnesses to establish the existence of a pre-trial relationship between 

the complainant and the other alleged victim because he wanted to minimize the

amount of time that the jury focused on the other victim’s story. The trial court 

denied the motion.

ANALYSIS

Appellant raises four issues on appeal. In his first issue, appellant contends

that the jury charge was confusing and should have included an instruction on 

community supervision. In his second and third issues, appellant argues for the 

first time on appeal that his trial counsel was ineffective because he (1) failed to 

object to the punishment-phase jury charge and (2) misstated the law in his closing 

argument. In his fourth issue, appellant contends the trial court abused its 

discretion when it denied his motion for new trial based on ineffective assistance of 

counsel. Within this issue, appellant argues that his trial counsel’s performance 

was deficient because he (1) failed to investigate the criminal history of the 

complainant’s mother; and (2) failed to interview and subpoena witnesses who 

would have (a) questioned the mother’s reputation within the community, (b) 

established the existence of a relationship between the complainant and the other 

alleged victim, and (c) given concrete evidence that appellant was living in Austin 

during part of the time period in which appellant was accused of committing sexual 

offenses against the complainant. We address each of these issues in turn.

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I. Appellant was not entitled to a community supervision instruction. 

In his first issue, appellant contends that the trial court erred in not including 

a community supervision instruction in the jury charge. We disagree because 

appellant was convicted of aggravated sexual assault of a child and thus is not 

eligible for community supervision.

When reviewing claims of jury charge error, we use a two-step process. 

First, we determine whether an error actually exists in the charge. Ngo v. State, 

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if an error exists, we 

determine whether it was harmful using the framework outlined in Almanza v. 

State, 686 S.W.2d 157 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d 

348, 350 (Tex. Crim. App. 2009). Under Almanza, the degree of harm required for 

reversal depends on whether an objection to the error was made at trial. If no 

objection was made, we will not reverse unless the error resulted in “egregious 

harm” such that appellant was denied a “fair and impartial trial.” Neal v. State, 

256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (quoting Almanza, 686 S.W.2d at 

171). If an objection was made at trial, however, we consider whether appellant 

has demonstrated “some harm” from the error. Ngo, 175 S.W.3d at 744.

Although appellant focuses his first issue on the lack of a community 

supervision instruction in the punishment-phase jury charge, his statement of facts 

also includes an argument regarding the guilt-phase charge on continuous sexual 

abuse. Appellant was found not guilty of continuous sexual abuse, and he does not 

explain how any error in the jury charge regarding that offense harmed him. 

Nevertheless, we discuss his argument regarding that charge because it provides 

background for our analysis of his punishment-phase issue.

As noted above, the statute creating the offense of continuous sexual abuse 

of a young child became effective September 1, 2007. A.W. turned fourteen on 

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October 8, 2010. Therefore, in order to convict appellant, the jury was required to 

find that he committed two or more acts of sexual abuse against the complainant

between September 1, 2007 and October 8, 2010. 

The trial court correctly charged the jury in the guilt phase that to find the 

defendant guilty of continuous sexual abuse of a young child, it must unanimously 

find that appellant committed two or more acts of sexual abuse against the 

complainant, over a period of thirty days or more, between September 1, 2007 and 

October 8, 2010. See Tex. Penal Code Ann. § 21.02(d). The court also included 

this same window of time in its instructions relating to the lesser included offense 

of aggravated sexual assault of a child. The charge stated that any testimony 

concerning offenses by appellant other than the offenses alleged against him in this 

case could only be considered as evidence of appellant’s or the child’s state of 

mind and of the relationship between appellant and the child.

Although appellant concedes that the time window for the continuous sexual 

abuse offense was correctly stated, he argues that the charge was confusing in that 

it informed the jurors that they were “not required to agree unanimously on which 

specific acts o[f] sexual abuse, if any, were committed by the defendant or the 

exact dates when those acts were committed.” (emphasis added by appellant).

Appellant asserts this instruction, which was taken verbatim from section 21.02(d) 

of the Penal Code, had the effect of broadening the acts under consideration to 

include those committed in 2005 and 2006. Thus, appellant contends he was 

entitled to a punishment-phase instruction on community supervision under the law 

in effect at that time. See Tex. Code Crim. Proc. Ann. art. 37.07 § 2(b) (West

2006).

We disagree that the instruction had such an effect. The Court of Criminal 

Appeals analyzed a jury charge for continuous sexual abuse of a young child in 

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Taylor v. State, 332 S.W.3d. 483 (Tex. Crim. App. 2011), concluding that the 

charge is “erroneous if it presents a much broader chronological parameter than is 

permitted by law.” Taylor, 332 S.W.3d at 488-489. There, the absence of an 

instruction focusing the jury on acts committed after the defendant turned 

seventeen was erroneous because the record contained evidence of sexual offenses 

the defendant committed before turning seventeen. Similarly, in Martin v. State, 

the Austin Court of Appeals concluded that a jury charge for continuous sexual 

abuse against a young child was erroneous if it lacked an instruction requiring the 

jurors to find that the requisite acts were committed on or after September 1, 2007. 

335 S.W.3d 867, 876 (Tex. App.—Austin 2011, pet. ref’d).

The jury charge in this case, however, contains no such error and tracks the 

statutory language precisely. See Tex. Penal Code Ann. § 21.02(d). The charge 

informed the jury that it could only convict appellant on the basis of acts 

committed within the time window permitted by law even as it instructed them that 

jurors did not have to agree unanimously on the exact dates those acts were 

committed. We see nothing in the latter instruction that would suggest to a jury 

that it could convict appellant of continuous sexual abuse based on acts outside the 

time window they were told to consider. We “must assume that the jurors read and 

understood the [jury] charge as a whole and that they took the challenged 

instruction into account.” Martin, 335 S.W.3d at 874. Moreover, appellant was 

ultimately convicted only of one lesser included offense of aggravated sexual 

assault of a child. As explained above, the jury was instructed that such an assault 

had to occur between September 1, 2007 and October 8, 2010, and no nonunanimity instruction was given with respect to this offense.

For these reasons, we reject appellant’s argument that his conviction could 

be based on an act occurring before September 1, 2007, and we apply the law as of 

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that date to determine whether a community supervision instruction should have 

been included in the punishment-phase charge. Jury-recommended community 

supervision is governed by Article 42.12 section 4 of the Code of Criminal 

Procedure. A defendant is not eligible for community supervision if he has 

committed a crime listed in Article 42.12 section 3g(a)(1)(C), (E), or (H) if the 

victim of the offense was younger than fourteen at the time the offense was 

committed. See Tex. Code Crim. Proc. Ann. art. 42.12 § 4(d)(5) (West 2006). 

Appellant was convicted of aggravated sexual assault of a child younger than 

fourteen, which is the offense listed in section 3g(a)(1)(E). This exception to 

community supervision eligibility took effect on September 1, 2007. Act of May 

18, 2007, 80th Leg., R.S., ch. 593, § 1.05, 2007 Tex. Gen. Laws 1120, 1123. 

In sum, the jury unanimously found that the appellant had committed an 

aggravated sexual assault against complainant between September 1, 2007 and 

October 8, 2010—a time period when she was younger than fourteen. Therefore, 

appellant was not eligible for jury-recommended community supervision, and the 

trial court did not err in omitting an instruction on community supervision from the 

punishment-phase charge. We overrule appellant’s first issue.

II. Trial counsel was not ineffective for failing to object to the jury charge 

and failing to mention community supervision in closing argument.

In his second and third issues, appellant contends that trial counsel rendered 

ineffective assistance because he (1) failed to object to the lack of a community 

supervision instruction in the punishment-phase jury charge and (2) misstated the 

minimum sentence for which appellant was eligible by not mentioning to the jury 

that appellant was eligible for community supervision. Because we have already 

determined that appellant was not eligible for community supervision, we hold that

trial counsel did not render ineffective assistance in either respect. We therefore 

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overrule appellant’s second and third issues.

III. The trial court did not abuse its discretion when it denied appellant’s 

motion for new trial. 

In addition to his ineffective assistance of counsel claims raised for the first 

time on appeal, discussed above, appellant made several claims of ineffective 

assistance of counsel in his motion for new trial. In particular, appellant’s motion 

complained that his trial counsel’s performance was ineffective for three reasons 

that he also raises in his fourth issue on appeal. First, appellant claimed that his 

trial counsel failed to investigate into the criminal background and obtain the 

criminal record of the complainant’s mother. Second, he contended that counsel

failed to interview witnesses who could have established that there was a 

relationship between the complainant and the alleged extraneous victim. Third, he 

asserted that counsel failed to examine witnesses who could have demonstrated 

that appellant was living in Austin during some of the time period within which 

appellant allegedly committed the crimes. 

A. Standard of review

We review a trial court’s decision on a motion for new trial for an abuse of 

discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). 

Under this deferential review, we reverse the trial court’s decision only if the 

decision was clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453, 457 

(Tex. Crim. App. 2012). Given the absence of express factual findings, we view 

the evidence in the light most favorable to the trial court’s ruling and assume that 

the court made implicit findings of fact that support its ruling as long as the record 

supports those findings. Hall v. State, 283 S.W.3d 137, 165 (Tex. App.—Austin 

2009, pet. ref’d). We will reverse only if no reasonable view of the record could 

support the trial court’s ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. 

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App. 2006). We must not substitute our own judgment for that of the trial court 

and must uphold the trial court’s ruling if it is within the zone of reasonable 

disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). 

Through this lens of deferential review, we apply the two-pronged test for 

ineffective assistance of counsel outlined in Strickland v. Washington, 466 U.S. 

668 (1984). See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). 

This test required appellant to demonstrate by a preponderance of the evidence that 

1) counsel’s performance was deficient because it fell below an objective standard 

of reasonableness (performance prong); and 2) the deficient performance caused 

appellant prejudice because there is a probability sufficient to undermine 

confidence in the outcome that but for counsel’s unprofessional errors, the result of 

the proceeding would have been different (prejudice prong). See id. Appellate 

review of counsel’s representation is “highly deferential and presumes that 

counsel’s actions fell within the wide range of reasonable and professional 

assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We will 

not second-guess strategic decisions made by trial counsel unless the challenged 

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

Ex parte Harrington, 310 S.W.3d 452, 459 (Tex. Crim. App. 2010).

Applying this standard to the three complaints appellant presses on appeal, 

we conclude that the trial court did not abuse its discretion in denying appellant’s 

motion for new trial because the trial court could reasonably have found that 

appellant failed to prove at least one of the required elements of an ineffective 

assistance claim as to each complaint. 

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B. Counsel’s failure to investigate the criminal background of the 

complainant’s mother did not render his performance deficient. 

At trial, the complainant’s mother testified regarding the relationship 

between herself, her daughter, and appellant, and she recounted the complainant’s

2011 report of appellant’s conduct. The mother also testified the complainant had 

previously indicated that appellant was abusing her, but the complainant recanted 

the accusation the next day. Appellant contends that his trial counsel did not 

thoroughly investigate the mother’s background or allow witnesses to testify who 

could have questioned her reputation for truthfulness. Specifically, appellant 

contends that the complainant’s mother could have been impeached because she 

had been convicted of theft, a crime involving moral turpitude.

Because this issue was raised in the motion for new trial, appellant’s trial 

counsel had the opportunity to explain his reason for not questioning the mother

about her criminal background. Trial counsel explained that although he was made 

aware of the mother’s prior conviction for theft, he was told that it had occurred 

more than ten years before the trial. Given the length of time between her 

conviction and appellant’s trial, trial counsel testified that did not want to bring up 

the issue of the mother’s criminal history because he feared that an honest response 

would bolster her credibility to the detriment of his client. Because this is a 

plausible concern with a remote conviction, we conclude the trial court did not 

abuse its discretion in finding that such a strategy was not “so outrageous that no 

competent attorney would have engaged in it.” Harrington, 310 S.W.3d at 459. 

Moreover, the evidence would likely have been inadmissible since the conviction 

had occurred more than ten years before the start of the trial. See Tex. R. Evid.

609(b) (providing that evidence of a conviction is inadmissible if more than ten 

years have passed since the date of conviction or release from confinement). In 

light of trial counsel’s testimony regarding his strategy as well as the likely 

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inadmissibility of the evidence, appellant has not demonstrated that the trial court 

abused its discretion when it denied his motion for new trial based on this 

complaint. 

C. There is evidence that trial counsel’s decision not to seek witnesses

to address the relationship between the alleged victims was based 

on a reasonable trial strategy. 

Likewise, we cannot say the trial court abused its discretion in denying 

appellant’s motion for new trial on his complaint that trial counsel failed to 

interview witnesses who could have testified as to the existence of a relationship 

between the complainant and the alleged victim of an extraneous offense. As 

discussed above, appellant “opened the door” with respect to the testimony of the 

other alleged victim by stating at trial that he had never committed sexual acts 

against any child. This statement allowed the State to bring forward the alleged 

victim of the extraneous offense to rebut appellant’s claim. In addition to 

testifying about the extraneous offense, the other victim also testified that she had 

no prior relationship with the complainant. Appellant claims that his motion for 

new trial should have been granted because two witnesses claimed, during the

hearing on appellant’s motion for new trial, that they were ready and able to testify 

during the guilt phase that there was a pre-existing relationship between the 

complainant and the other victim, yet trial counsel declined to put them on the 

stand.

During the hearing on the motion for new trial, trial counsel indicated that he 

had consciously considered the best method to mitigate the harm caused by the 

“open door.” He testified that he wanted to minimize the amount of time that the 

jury focused on the other victim’s story. He anticipated that further discussion of 

the extraneous offense might have bolstered the perceived validity of the two 

alleged victims’ testimony, and that this cost outweighed any benefit that calling 

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two additional witnesses may have offered in suggesting a potentially collusive 

relationship between the alleged victims. Trial counsel did allow appellant to 

testify as to the existence of a pre-trial relationship between the alleged victims, 

however.

Based on this evidence, the trial court could find that it was a reasonable trial 

strategy to avoid focusing further attention on the other victim by calling additional 

witnesses to address her relationship with the complainant, especially where the 

jury had already heard evidence contradicting the other victim’s story that she did 

not know the complainant. Moreover, appellant has not explained why it is 

reasonably probable that additional evidence of a relationship between the victims 

would have led to a different result. Accordingly, we hold that the trial court did

not abuse its discretion by denying the motion for new trial based on this 

complaint.

D. Appellant did not show prejudice from trial counsel’s failure to 

offer additional evidence regarding appellant’s residence. 

Finally, appellant claimed at the hearing on the motion for new trial that his 

trial counsel was ineffective because he did not obtain certain evidence verifying 

that appellant lived in Austin sometime between 2001 and 2004 and did not call a

potential alibi witness to testify about the time period when appellant lived in 

Austin. Appellant claims that trial counsel had access to material evidence 

demonstrating that appellant was living in Austin during the time when 

complainant alleged the sexual advances began. The alleged alibi witness, who did 

not testify at trial, testified in the hearing on the motion for new trial that appellant 

was living “off and on” in Austin for several years.

Trial counsel was not questioned about this complaint at the hearing on 

appellant’s motion for new trial. Ordinarily, counsel should have an opportunity to 

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explain his or her actions before being held ineffective. Rylander v. State, 101 

S.W.3d 107, 111 (Tex. Crim. App. 2003). We need not determine whether trial 

counsel’s performance was deficient, however, because the trial court could 

reasonably have found that appellant was not prejudiced by the failure to provide 

further evidence of his residence during part of the time period in which he was 

accused of committing sexual offenses against the complainant.

At trial, appellant himself testified concerning the dates that he lived in 

Austin, and the State did not introduce any evidence to contradict those statements. 

Likewise, appellant’s wife testified during trial that appellant lived in Dallas during 

2010. Whether appellant lived “off and on” in Austin was never a disputed issue 

in this case. Moreover, the additional evidence appellant faults trial counsel for not 

offering would not have provided an alibi for the entire time period during which 

he was accused of committing the sexual abuse—between September 1, 2007 and 

October 8, 2010. Because the trial court could reasonably have found that it was 

not reasonably likely the result of the proceeding would have been different had 

trial counsel provided additional evidence or witnesses to show appellant lived in 

Austin periodically for several years, the trial court did not abuse its discretion by 

denying appellant’s motion for new trial. We overrule appellant’s fourth issue.

CONCLUSION

Having overruled each of appellant’s issues on appeal, we affirm the trial 

court’s judgment.

/s/ J. Brett Busby

Justice

Panel consists of Justices McCally, Busby, and Donovan.

Do Not Publish — TEX. R. APP. P. 47.2(b).

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