### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00438- CR
Larry Beltr an, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 08- 5003 96, H ONO RAB LE F RED A. MO ORE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant L arr y Be ltran of ag g rava ted sexual assault of A.B ., his minor daug hter. See Tex. Penal Code Ann. § 22.021 (West Supp. 2012). Be ltran opted to have the 1 trial court assess punishment and pled true to three alleg ed prior convictions, and t h e t ri al court sentenc ed him to li fe i m p risonment. Be ltran filed a mot ion for new t rial, which was overruled as

a matter of law without a hear ing. See Tex. R. App. P. 21.8(a) , (c)

. On appea l, Be ltran contends that his trial counsel was ineffe ctive and that the trial court err ed by allowing one of the State’s expert’s testimony

. We affir

m the trial court’ s judgme nt of conviction. 2
Be ltran was char g ed with one count of ag g rava ted sexual assault of a child by penetr ation, 1 one count of ag g rava ted sexual assault by causing his sexual org an to contac t the victim’s sexual org an, and one count of indece ncy with a child by contac t. See Tex. Penal Code Ann. § 21.11 (West 2011), § 22.021 (West Supp. 2012). The char g e instructed the jury that it could only convict Be ltran of one of the three char g es, and t h e j u ry found him g uilty of count I , ag g rava ted sexual assault by penetr ation. Be ltran’s motion for new trial asser ted only that the testimony by one of the State’s expert 2 witnesses wa s improper; it did not alleg e inef fec tive assistance of counse l.Ineff ect ive Assistance of Counsel On ap p ea l , Be ltran contends that he rec eived ineffe ctive assistance of counsel in three respe cts: trial co u n s el (1) did not object to the S tate’s introduction of evidence of Be ltran’s prior crimes, wrong s, or acts; (2) actively elicited testimony that Be l t ra n was a reg istered sex off ender , enabling the prosec utor to que stion the witness about Be ltran’s criminal history ; a nd (3) called Be ltran to testi fy wh en any potential advanta g e was substantially outweig hed by the potential disadvantag es of e x posing B eltran to c ross-examination reg arding his prior convictions. Standard of Review T o show ineffe ctive assistance of counsel, a defe ndant must show that coun s el ’s perf ormanc e fell below an objective standard of rea sonablene ss and that the defic ient perf ormanc e prejudiced the defe ndant’s case . Thompson v. State , 9 S.W .3d 808, 812 (Tex. Crim. App. 1999); Blevins v. State , 18 S.W .3d 266, 271 (Tex. App.—Austin 2000, no pet.). To demonstrate prejudice , a defe ndant must show that there is a rea sonable probability that but for counsel’s err ors, the result of t he proc ee d i n g would have been differe nt. Jack son v. Stat e , 877 S.W .2d 768, 771 (Tex. Crim. App. 1994). The defe ndant must (1) overc ome a strong presumption that counsel’s perf ormanc e fell within the rang e of rea sonable profe ssional assista n ce an d (2) bring forth a rec ord showing that counsel’s perf

ormanc e was not based on sound trial strateg y . Thompson , 9 S.W .3d at 813; Blevins , 18 S.W .3d at 271. Unless the rec ord demonstrates that counsel’s conduct was not the product of a strateg ic or tactica l decision, we should presume that his perf ormanc e was constitutionally adequate unless the challeng ed conduct was s o o utrag eous t hat no competent attorney would have eng ag ed in such conduct. State v. Morales , 253 S.W .3d 686, 696-97 (Tex. Crim. App. 2008). The rec ord on

2d i re ct appea l is usually insufficient to show that counsel’s repr esenta tion was so defic ient and s o lacking in tactica l or strateg ic decision-making to overc ome the presumption that counsel’s conduct
was re asonable and prof

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

Factual Back

ground A.B
. is the child of Be ltran and T.W., Be ltran’s ex-wife. A.B
. was born in 2000 and
was nine y ear s old at the time of trial. I n 2006, Be ltran’s fath er p l ed g uilty to the ag g rava ted sexual a ssault of A.B
. April Abell, T.W.’s adoptive mother and A.B .’s g randmother , testified that T.W. suff ere d from bipolar disorder and that A.B . had come to live with A bell and her husband in J anuar y 2008 beca

use T.W. was unable to car e for her proper ly

. Abell testified that soon afte r A.B
. started livi ng with them, she and A.B .’s gra ndfathe r noticed she was de fec ating in her unde rwe ar, despite being eig ht y ear s old, and was having se vere nightmar es that “a lway s revolved around he r fathe r beating her with a belt.” Three or four wee ks afte r A.B
. came to live with Abell in 2008, she made a n outcry that Be ltran had se x ually abused he r about six m onths earlier

. A.B
. t es t i fi ed t hat Be ltran had touched her “priva te” with “[h] is private” once and that it hurt. A.B
. did not tell her mother beca use T.W
. “would g et sca

red” ; she dec ided to tell her g randpa rents about the abuse beca use she “knew they wouldn’t g et rea lly , rea lly scar ed.” She also said Be ltran trea

ted her “bad” and spanke d her w ith a belt more than onc e. T.W. testified, and when the State asked her abou t A.B .’s 2006 outcry ag ainst Be ltran’s fathe r, T.W. said s h e i nitially thought A.B
. meant that Be ltran had abused her, not his fathe r. On cross-e x amination, trial counsel asked T.W. why she first thought Be ltran, not his fathe r, had abused A.B
. in 2006. A short discussion was held at the bench, and Be ltran’s trial counsel said,

3“[O]ur strateg y at this point we are g oing to testify —we are g oing to g o in to all this.” Trial counsel 3 said he thought the State’s attorney was try ing to instruct T.W. not to talk about Be ltran’s past
rec ord, but “that’s all off,” explaining to T.W. that she could “answ er this question fully without any restric tions whatsoeve r,” and asking whether her assumpt ion was due to something A.B. had said
or “base d on [Beltran’ s] rec ord.” T.W. responde d that it was based on Be ltran’s criminal rec ord as
a sex offe nder. She also said Be ltran had initially lied to her about his prior offe nse, telling her the victim was sevente en, not twelve, as she later discovere d. On redire ct, the State asked T.W. a bout Be ltran’s prior convictions, and she said he had g one “to jail quite often” for failure to reg ister as a sex offender

and for driving while intox icated. Be ltran t estified on his own behalf, and during his direc t testim o n y and the S tate’s
cross-e x amination, he wa s asked about his prior convictions for indecenc y with a child, failure to reg ister as a sex offe n d er , and driving while intox icated. Be ltran admitted that he was orig inally char g ed with a g g rava ted sexual a ssault of a child in the ear lier indece ncy case and that he “ple d to that offe nse and

. . . actua lly pled g uilty to indece ncy with a child by contac t.” He also testified that T.W. used to threa ten to have him arr ested based on his prior convictions, stating that when he called the police about her assau l t i v e b eh av i or, she threa tened to tell the police that he was a reg istered
sex offe nder. Be ltran admitted to spanking A.B ., including with a belt, and to choking T.W. during

a fig ht, and said he knew that A.B
. had “re ported that ‘daddy ch o k ed m o m my and tried to send mommy to the ang els.’” He did not know why A.B
. was falsely acc using him of sexual abuse and said the only rea son he could think of was one occa sion when he g ot ang ry afte r she soiled herse lf.

Be ltran’s attorney and the prosec utor had agr eed on a pretrial m otion in limine that they 3 would not “g o into the defe ndant’s priors w ithout approac hing.” 4Be ltran called his sister to testify , and she said she had hear d T.W. th re at en t o call the police and

have Be ltran arr ested beca use of his past rec ord as sex offe nder. She also said T.W. had threa tened to have he r ar

rested f or abusing T.W.’s sons.

Discussion Be ltran firs t ar gu es that he rec eived ineffe ctive assistance beca use counsel did not object to testimony that Be ltran y elled at and hit his children, spanked A.B
. with a belt, y elled at A.B
. for a long time, choked T.W. and tried to “send [her] to the ang els,” and fre quently appea red in A.B .’s nightmar es beating her with a belt. Although Be ltran arg ues that counsel’s failure to object
was not part of a sound trial strateg y , he admits that counsel’s overa ll trial strateg y was to arg ue that T.W. had persuaded A.B. to falsely acc use hi m of sex ual assault. Howeve r, h e co n t en ds that this strateg y would have be en more eff ective w ithout evidence r eg arding his ex trane ous bad ac ts. First, Be ltran has not shown that counsel’s strateg y was unsound or th at i t was
unrea sonable to believe that the jury might have viewed evidenc e about Be ltran’s violence towards his family members as g iving T.W. and A.B
. motive to make false acc usations. Nor is it clea r that
counse l was only using that one strateg y . Finally , counsel could rea sonably have believed that at least some of the evidenc e was admissible under the code of criminal proce d u re , whi ch allows evidenc e of other crimes or bad acts committed by the defe ndant ag ainst the alleg ed child victim to show (1) the state of mind of the defe ndant and the child and (2 ) t h e re l ati onship betwee n the defe ndant and child. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2012). Be ltran has not shown that counsel’s perf ormanc e rela ted to evidenc e of other bad acts fell below an objective standa

rd of r easona

bleness. See B one , 77 S.W .3d at 833.

5Be ltran next arg ues that counsel was ineffe ctive beca use he el icited testimony from T.W. about Be ltran’s prior convictions and that opening the door to testimony about his prior convictions was not a part of a sound trial strateg y . He arg ues that counsel could have established that T.W. had previously t h re at en ed to have him arr ested without eliciting testimony about his criminal history

. He also contends that counsel was ineffe ctive in calling Be ltran to testify , arg uing that it did not further his case , there was no signific ant advanta ge to be g ained, and any potential advanta g e was substantially outweig hed by the disadvantag e of exposi ng him to cross-e x amination reg arding his prior convictions. He arg ues that the only potential value of his testimony was to allow him to deny

A.B .’s alleg ations, which wa s acc omplished when he e ntere d his not-guilty plea. Counsel specific ally told the court that his asking T.W. about Be ltran’s prio r convictions was part of his trial strateg y . Although counsel did not specify exactly what his strateg y was, i t i s re asonable to conclude that counsel might have wanted to bring out this information to show that Be ltran was being honest and wa s n o t t ry i ng to hide his criminal history , rathe r than risking vag ue answe rs that could lead the jury to believe Be ltran was conce aling something. Fur ther, i n co u n s el’s closing arg ument, he arg ued that A.B
. was persua ded by her mother to make fal s e
acc usations ag ainst Be ltran and that T.W. had “used [Beltran] being a sex offe nder as a way to keep control over

[hi m] and hold that over

his head.” Having Be ltran testify could rea sonably have been part of counsel’s strateg y to show the jury that Be ltran was not attempting to hide his past wrong doings and to allow Be ltran to explain the circ umstances of his prior convictions. I t also meshed with counsel’s defe nsive theory that T.W. persua ded A.B
. to make false acc usations, pointing to T.W.’s past behavior of holding Be ltran’s sexoffe nder status a g ainst him whe n ang ere d. The fac t tha t a n alterna te trial strateg y could have been 6used does not establish that counsel was ineffe ctive. See Damian v. State , 881 S.W .2d 102, 110

(Tex. App.—Houston [1st Dist.] 1994, pet. ref ’d). Ba sed on this rec ord, Be ltran has not shown that counsel’s conduct was not the product of a sound strateg ic or tactica l decision or was so outrag eous that no competent attorney would have eng ag ed in such conduct. See Morales , 253 S.W .3d at 696- 97. Be cause Be ltran has not shown that counsel’s perf ormanc e fell below an objective standard of
rea sonablene ss, see Bone , 77 S.W .3d at 833, we ove rrule B eltran’ s first issue.
Adm ission of E xpert Witness Test im ony I n his second issue, B eltran c ontends that the trial cour t committed rever sible err or in overruling his objections and allowing Dr. Willi am Carter to testify as an e x pert witness. Standard of Review We revie w a trial court’s admission of ex p er t t est imony under an abuse of discretion standard. Till man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011); Coble v. State , 330 S.W .3d 253, 272 (Tex. Crim. App. 2010). “Such ruling s will rar ely be disturbed by an appellate court.” Jessop v. State , 368 S.W .3d 653, 689 (Tex. App.—Austin 2012, no pet.). A court abuses its discr etion if it a cts without r efe renc e to a ny g uiding rules and principles. Montgomery v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990). The trial court is g iven a “limited rig ht to be wrong ”
as l o n g as i t does not act in an arbitrary or capricious m anner . Id. We will not reve rse unless we deter mine that the trial court’s ruling was so wrong as t o fall outside the zone within which
rea sonable people might disag ree . Till man , 354 S.W .3d at 435; Jessop , 368 S.W .3d at 689. Ex pert testimony is a dmissibl e if the party offe ring the testimony proves that it is releva

nt and base d on a “re li ab l e s ci entific foundation.” Till man , 354 S.W .3d at 435

. We ask whether the evidenc e will
7assist the j ury and is “‘suf

ficiently tied to the facts of t he case,’” meaning the ex pert must attempt to “‘tie pertinent fac ts of the case to the scientific principles which are the subject of his testimony .’” Id. at 438 (quoting Jordan v. State , 928 S.W .2d 550, 555 (Tex. Crim. App. 1996)).

I f the evidenc e was rele vant and based on a proper scientific foundat i o n , we next weig h its probative value ag ainst its prejudicia l eff ect. Jessop , 368 S.W .3d at 694. The rules of evidenc e favor “the admission of rele vant evidenc e and [carry ] a presumption that rele vant evidenc e will be mor e p robative than prejudicia l,” and we rec og nize that “[a]ll testimony and phy sical evidence ar e l ikely to be prejudicia l to one party or the other.” Id. I nstead, we will only exclude evidenc e that ca

rries the dang er of

unfair pr ejudice, me aning a tendenc y to le ad the jury to make a decision on an imprope r basis. Id

. “[O]nl y when there exis ts a clea r disparity

betwee n the deg ree of prejudice produce d by the offe red evidenc e and its probative v al u e” wi ll rule 403 require exclusion of releva

nt evidence

. Id .; see Tex. R. Evi d. 403.

Factual Back

ground After the defe nse rested its case -in-chie f, the State called Dr. C ar t er as a rebuttal witnes s . C ar ter specia liz es in the trea tment and evalua tion of sexual abuse victims and testified about g ener al patterns of sexual offe nders and their victimiz ation of children; Carter had no specific knowledg e of the case. Be fore Carter beg an to testify befor e the jury , Be ltran’s cou n sel took him
on voir dire and objected to sever al issues that the prosec utor said she intended t o raise during Carter ’s testimony , including testimony about whether sex offe nders tend to mi n i m ize and deny later offe nses and to his opinion that a person wo uld be more likely to sexually assault a child if his fathe r had co m m itted a simil ar offe nse. Counsel arg ued that testimony about the truthfulness

8of sex offe nders was more prejudicia l than probativ e an d wo u l d g o “bey ond what is leg ally

permissible” if it ref

ere nced “re sear ch [t hat] this particula r person or this particula

r class of persons is less credible tha

n another class of pe rsons.” B eltran a lso specifica lly objected to te stimony that someone with a sex offe nder for a fathe r was statistically more li kely to be a se x offe nder himself
or that such offe nses run in families, say ing it was impermissible to allow testimony that invited the jury to think that “his daddy did it, so he did it, too.” The trial court overr uled Be ltran’s objections and allowe d Carter

to testify

. Carter was a sked by

the prosec utor:
L et me g ive y ou a hy

pothetical

. . . [a] g randfather perpe trates on a child, subsequently confe sses to tha t a nd is convicted, a s well as a son ha s perpe trated on another child who was approximately 12 y ear s old. Does that tell y ou any thing abut what kind of an environment a child would experien ce

— or what a child would experience if they

wer e broug ht into such an environment?
Be ltran’s attorney objected that any probative value was outweig hed by the dang er of unfair prejudice , see Tex. R. Evid. 403, and the trial court overr uled the objection. Carter answe red, “What y ou are speaking of is sug g estive of a . . . family sy stem wher e sex and sexualit y is inappropria tely expressed. That would sug g est and leave open the possibili ty that a child born i n t o that world is more v u l n er ab l e than not.” He also said such an environment could “have an impact on her willingness to tell” if she was abused. Carter was then asked over Be ltran’s rele vance objection,

see id. R. 402, whether there wer e any studies show ing a corr elation of sexual a buse in a family in which a f ather and son ar e both known to have committed abuse. Car ter re plied:
What I would say there is that if there is sexual devianc e wi thin various male m em bers,

. . . the more vulnera ble the child is. I can’ t say that beca use one man 9sexually abuses, all other m en in the family sy stem are g oing to sexually offe nd as

well. But when y ou see patterns and char acte ristics like that within family sy stems, it sug g ests that sexualit y is inappropria tely expressed wit hin that sy stem and that a child pulled into that sy stem is more vulnera ble than not.
Carter was reminded t hat bot h Be ltran and his father were convicted sex offe nders and was asked whether there was a corr elation. He answe red, “Ye s, I think y ou can say there is a connec tion here .” Be ltran objected, arg

uing, “I b el ieve the last question went way , way over the line of what is permissible for any expert witness to testify

. That is flat out say ing he did it beca use his daddy did it, that’s g round for mistrial.” The prosec utor noted that Be ltran’s prior conviction was alre ady “out there ,” and the trial court said, “Ac tually the only rea son the convictio n came in was to impeach him.” The State responde d, “He pretty much let me have open reig n [si c],” and the trial court said, 4 “I ag ree . I t is overruled.”
Discussion

Be ltran arg ues that admission of Carter ’s testimony was err oneous beca use evidenc e of a person’ s char acte r i s not admissibl e for the purpose of proving action in confor mity with that char acte r trait on a particula r occa sion, nor is evidenc e of crimes, wrong s, or other acts admissible to prove that a person acte d in confor mity with such evidenc e. Id

. R. 404(a) , (b). Be ltran does not attack the scientific reliab i l i t y or rele vance of Carter ’s testimony and instead arg ues that Carter ’s testimony violated the Texas Constit ution and the code of criminal proce dure by imply ing that

Be ltran points to this statement by the trial court to support his asser tion that the co u rt 4 ad m i tted evidenc e of his prior convictions “for the limit ed purpose of allowing the S t at e t o attack [Be ltran’s] cre dibilit y as a witness.” Howeve r, t he record does not support the t rial court’s statement. Be ltran introduced evidenc e of his prior convictio n s , as discussed ear lier, and that evidenc e wa s not admitted over B eltran’ s objection or with limiti ng instructions or cautions. 10Be ltran sexually assaulted A.B
. beca use both he and his fathe r wer e convicted sex offe nders. Thus,
we need only consider whether Carter ’s testimony might have led the jury to decide Be ltran’s g uilt
o n an i m proper basis and whether there was “a clea r disparity betwee n the deg ree of prejudi ce produce d by

the offe red e vidence and its probative va lue.” Jessop , 368 S.W .3d at 694. The State called Carter to testify g ener ally to the patterns of sexual offe nders and how these offe nders ty

pically victimiz e children. Carter stated that he never interviewe d A.B ., Be ltran,
or any of the other witnesses and that his purpose was to help the jury to understand the nature and dy namics of sexual abuse. Carter answe red hy pothetical quest i o ns based on this case but did not make any specific statements about Be lt ra n ’s ch aracter or his acts, instead explaining the g ener al patterns and patholog y often found in sex offe nders and their families. I n his brief, Be ltran does not explain how Carter ’s testimony about statistical corr elations in families with sex o ff ender s or the vulnera bility of a c hild born into such a fa mily car ried with it “unfa ir prejudice ” or howthere was
a “cle ar disparity ” betwee n its probative value a nd its deg ree of pre

judice. See id. Be ltran simply sets out the s tandar d to be applied when reviewing the admis sion of such evidenc e a nd conclude s that “it cannot be said with fair assura nce that the afor seaid testimony

. . . did not influence the jury , or had but a slight eff

ect
. ” T h e fact that Carter ’s testimony was unfavor able to Be ltran does not mean it ca

rried a risk of unfa ir prejudice

. See id. ; see also Pe ters v. State , 31 S.W .3d 704, 720-21 (Tex. App.—Houston [1st Dist.] 2000, pet. ref ’d) (pre judicial eff

ect of testimony about rec idivism rate s for incest offe nders did no t s ubstantially outweig h probative value, thus trial court err ed in excluding proff

ere d testimony

); Kos v. State , 1 5 S
. W
. 3 d 633, 641-42 (Tex. App.—Dallas 2000, pet. ref ’d) (pre judicial poten t i al of testimony about how “‘se duction ty pe’ pref ere ntial offe nder” comes to control victim did not outweig h probative va lue).
11The trial court could have conclude d that this kind of information, even when tied

to fac ts drawn f

rom the ca se, would be helpf ul to the jury

in its deliberations of the evide nce. See Tex. R. Evid. 702. The rec ord ref lects that the trial court attempted to hew to the g uiding principles set out in the rules of evidenc e, and we conclude that the court did not abuse i t s d i s cre tion in deter mining that the testimony was more probative than prejudicia l and there fore within the bounds of rule 404. See id. R. 404. There fore , we ove rrule B eltran’ s second issue.
CONCLUSION We have overr

uled Be ltran’s issues on appea l. We there fore aff irm the trial court’s judgme nt of conviction.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ David Pury ear , J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: De cembe r 21, 2012 Do Not Publish

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