### 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. 03-11-00256- CR

Donald Joh n Noland , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT NO. 637 02, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant, Donald J ohn Noland, was char g ed with ag g rava ted sexual assault of a child y oung er than fourtee n y ear s of ag e. See Tex. P enal Code A nn. § 22.021 (West Supp. 2011). Noland waived his rig ht to a jury trial and enter ed a plea of not g uilty
. The trial court found Noland g uilty and assessed punishment at forty y ear s’ imprisonment. Noland appea ls, asser ting that he was denied e ffe ctive assistanc e of c ounsel. We aff irm the trial cour

t’s judgme nt.
BACK GR OUND The victim in this case , K.B ., is Noland’s stepdaug hter. I n the spring of 2008, K.B
. 1

was twelve y ear s old and lived with her mother, Shawna Noland; her brother; her stepfathe r, Noland; and Noland’s mother and nephew
. One day that spring , K.B
. confide d to two friends at school that 2

The fa cts rec ited here in are taken f rom the testimony

and exhibits prese nted at trial. 1 Be cause K.B .’s mother, Shawna Noland, share s the same surname as the appellant, we will 2 ref er to he r by

her f irst name for

clar ity
.Noland was having sex with her ever y wee kend when her mother was awa y . K.B .’s friends decide d to noti fy t h e school counselor, Kim Vaug hn, about what K.B
. had said. Vaug hn spoke wit h K.B
. and then made a repor

t to Child Protective Service s (CPS). After interviewing K.B
. and her pare nts
a n d v is it in g th e ir h o me , a CP S in v e s ti g a to r c o n ta c te d th e T e mp le Po li c e D e p a r tm e n t. A s e xu a l a s s a

u lt

n u r s e e xa mi n e r e xa mi n e d K
. B
. , a

n d a s ta f f me mb e r a

t th e Ch il d A d

v o c a c y Ce n te r ( CA C) in

te r v ie w e d K.B
. K.B
. was subsequently remove d from the home, and on September 24, 2 0 0 8, Noland was indicted for a g g rava ted sexual assault of a c hild y oung er tha n fourtee n. At the bench trial, the State prese nted testimony as to K.B .’s outcry and the resulting investiga tion. CPS investiga tor J ana J ordan testified about her interview with K.B ., stating that K.B
. repor ted multipl e instances of sexual abus e by Noland. J ordan also testified that she interviewe d K.B .’s mother, Shawna, who did not seem to believe her daug hter about the abuse. J ord an then
rec alled interviewing Noland. She testified that Noland denied any sexual intercour se with K.B
. but did descr ibe an incident when K.B
. demande d to try on some linge rie Noland had purcha sed for his wife. Acc ording to J ordan, Noland said he permitted K.B
. to try on the linge rie. Noland said he sent K.B
. into another room, but she came back wea ring the linge rie. Howeve r, Noland said he could not
s ee K.B .’s body underne ath the linge rie beca use it was not “see -throug h.” J ordan testifi ed t h at Noland admitted telling K.B . not to tell any one about the ling erie or he mig ht be ar rested. J ordan also testified about vi s i t i n g K.B .’s home. She stated that she found some linge rie made of black netting, which did not match Noland’s descr iption of the linge rie tried on by K.B ., but also did not look larg e enoug h to fit Shawna. J ordan said that K.B
. identified the linge rie as “a sex outfit that her s t ep fa t h er h ad bought for her” and also showed J ordan a vibrator that she

2claimed Noland had g iven her. Photos of the items J ordan found wer e admitted into evidenc e. The

linge rie and a bottle of lubricant, which wer e collecte d by the police, wer e also admitted. The State asked J ordan what finding s CPS made in c losing its c ase on Noland. J ordan replied that Noland’s
case was classified as “re ason to believe,” which meant that CPS “validate d him for sexual abuse.”

K.B .’s frie nd, J .G., was then called by the State. She testified that K.B . was c ry ing

w h e n s h e to ld h e r f

r ie n d s a b o u t N o la n d h a v in g s e x w it

h h e r . J. G
. r e c a ll e d a le r

ti n g th e s c h o o l c o u

n s e lo r to K.B .’s claims. The counselor, Vaug hn, also testified, describing the conver sation she had w it h K
. B
. a f te r b e in g a p p r o a c h e d b y K
. B
. ’ s f

r ie n d s . A c c o r d in g to V a

u g h n , K
. B
. to ld h e r th a

t o n w e e k e n d s 3 when her mother would g o out, K .B. would spend time in her mother’s bedroom on the computer, and her stepfathe r would come in and have sex with her. Fur ther, K.B
. said that Noland threa tened to shoot him self if she told any one about these incidents.

The State then called K.B
. to testify
. K.B
. stated that, in October of her seventh-g rade y ear , she had to g o to a psy chiatric hospital beca use she was cutting herse lf. K.B
. explained that she had been depre ssed beca

use her mother was inattentive and that she was also in the hospital for acting out sex ually , such as showing her br easts to boy s at school. K.B . testified that she ha d told hospital staff she hear d voices telling her to touch herse lf. Howeve r, she admitted that this was a lie she had told to g et attention.

After leaving the hospital, K.B
. g ave an interview at t h e C AC about an event that
occur red befor e her hospitaliz ation. Acc ording to K.B ., while sleeping over at a friend’ s house, K.B
. Vaug hn wa s t he desig nated “outcr y witness” called by the State. See Tex. Code Crim. 3 Proc. Ann. § 38.072 (West 2005). At the outset of Vaug hn’s testimony , Noland’s attorney stated that he would object to hear say if any additional “outcr y ” witnesses wer e called. The State indicated that Vaug hn was the only

one. 3followed the friend’ s older brother t o his room and had sex with him. She claimed this happene d

in J une 2006, when she was eleve n y ear s old and the boy was fiftee n or six teen. K.B
. testified that Noland had le arne d about this event and the ref ore kne w that she “ wasn’t a virg in.” K.B. t h en t est ified t hat, s ometime afte r she left t he hospi tal but befor e she told the CAC about her fr i en d’s brother, Noland bega n having sex with her. K.B
. claimed that, while s he
was using the family computer, Noland would come into the room drinking alcohol and would offe r her some. After she would drink the alcohol, K.B
. testified, Noland would touch K.B .’s brea sts over her clothing. L ater , Noland would touch K.B .’s “vag ina are a and [her] butt” with “his dick.” K.B
. added, “The vag ina are a was with his tongue , too.” She also testified that Noland had put his penis “in [her] mouth an d i n [ h er ] b u tt,” which “hurt.” K.B
. testified that Noland applied “some ty pe of lotion,” which was a y ellow-c olored g el from a small contai n er , onto his penis. She rec alled showing the containe r to the dete ctive who visited her house. K.B
. stated that the ab u s e b eg an befor e Christmas 2007, when Noland’s mother and nephew moved into the home, and continued while they lived there
. K.B
. testified that Noland threa tened to kill himself if she told any one what was happening , which was why she did not initially tell her ther apist or any one at the C AC. She stated that the last time Noland ha d sex wit h her w as the wee kend bef

ore she returne d to the CAC to talk about him. K.B
. also testified as to various items that Noland g ave her. She descr ibed one piece of linge rie that was black and full of holes. K.B
. denied asking to try this linge rie on, stating instead that Noland aske d her to try it on and she ag ree d. K.B
. said Noland took photos of her wea ring it. When a sked about the vibrator photogr aphed by CPS , K.B
. admitted that Noland did not g ive it to

4her. She testified that she took that vibrator from Noland’s closet. Howeve r, K.B
. stated that there

was a nother vibra tor, orig inally her mother ’s, that Noland did g ive to her. On cross-e x amination, K.B
. admitted that she had told lies in the past. She admitted to telling CPS t h at Noland beg an abusing her betwee n Christmas 2007 and spring brea k of 2008, wher eas she had just testified that the abuse beg an befor e Christmas 2007. K.B
. also admitted that she previously g ave the prosec utor a differ ent date—sometime around her birthday , May 2—as the last instance of the abuse. K.B
. admitted to telling sever al lies in the psy chiatric hospital, including that she hear d voices, had visions when she looked in the mirror, belong ed to a g ang , and drank pig’ s blood. Howeve r, on redire ct examination, K.B
. testified that she was mere ly confuse d about the dates whe n she wa s abused a nd had not bee n purposely untruthful in that reg ard. Next, the State questioned sexual assault nurse examiner Debr a Kley pas. After stating he r qualifica

tions, Kley

pas testified that the history she took f

rom K.B . indicated that K.B
. was sexually abused by her stepfathe r. Howeve r, the examination reve aled no phy sical evidenc e of abuse. There was no injury to K.B ., which Kley pas testified was probably beca use K.B
. had alre ady underg one puberty , causing chang es to her g enitals that make injury from sexual intercour se less likely
. I n addition, beca use sever al day s had passed since the last alleg ed assault and K.B
. was menstruating heavily , Kley pas dec lined to administer a DNA swab. 4 The State also presented testimony from Gar y Richards, a detec tive at the Temple Police Depa

rtment. Richards testified that, in his ex perie nce w orking with children victimiz ed by
Kley pas testified that she had deter mined that a swab would not be eff ective. Specifica lly , 4 she explained that menstruation car ries any DNA evidenc e outside of a woman’s body , leaving none for a swab to dete ct. 5phy sical or sexual abuse, he had seen many exhibi t b eh av i o rs like phy sical violence, sexually

acting out, and depre ssion. Richards also descr ibed acc ompany ing CPS to Noland’s house to collect evidenc e in this case. He ag ree d that Noland’s wif e appe are d too heavy to w ear the black linge rie found by CPS . Howeve r, he note d that he had visited the store in Killeen where it was purchase d and had le arne d that it was the larg est size the store could off er w ithout placing a

specia l order. L astly , Richards rec alled conducting a voluntary interview with N oland and asking about t he li ng erie
. Acc ording to Richards, Noland claimed that K.B
. kept asking t o try i t on until he let her. Howeve r, Noland admitted that the linge rie had nothing over the brea st are a and that K.B
. came out wear ing it with not hing underne ath. Noland said he tol d K.B ., “Oka y , that looks nice[.] Now g o take it off.” Richards said that Noland also admitted having a conver sation with K.B
. about g a g g in g d u r in g o r a l s e x a

n d a b o u t s h a v in g th e g e n it a l a

r e a . H o w e v e r , o n c r o s s - e xa mi n a ti o n , Ri c h a

r d s ag ree d that Noland denie d any sexual intercour se wit h K.B
. The defense then s howed Ri char ds a photo of S h awna wea

ring linge rie sim ilar t o that in evidenc e over her clothes. Richards admitt ed that, althoug h it was tight, Shawna did fit into t he ling erie
. Fi n all y , the S tate called J err y Upshaw, the g randf

ather who was car ing for K. B. i n Florida since her removal from the Nola nd home. Upshaw testified t hat K.B. had become a “fine child” who ear

ned A’s and B’ s in her classes and pl ay ed o n t h e school basketba ll team. Upshaw stated that K.B
. had been in counseling un t i l re ce n t ly but had not been on any medication since moving to Florida
. When asked if K.B
. had problems with boy s, Upshaw stated that “most teena g ers
are boy cra zy ” and K.B
. “just seeme d to be a littl e excessive.” He added that K.B
. had no problems with alcohol or drug s that he knew of. Acc ording to Upshaw, K.B
. sometimes told lies or fibs, but

6usually

with reg ard to “ internet use tha t she wasn’ t supposed to do . . . . We had issues wher e she would stay up late at night and g et on the internet when she shouldn’t have been.” Over all, Upshaw said, K.B . was “ a norma l teenag er.”

For the defe nse, K.B .’s mother Shawna was called to te stify
. She disputed some of K.B .’s statements. For instance, Shawna testified that the bottle of lubricant in evidenc e belong ed to her and Noland and had been empty for y ear s. “We don’t throw awa y our bottles rig ht offha

nd,” she ex plained. “We [ wait] until we can ac tually throw them aw ay

when there’s not kids around.” Shawna also claimed that she went out with friends just once or twice eac h month, rathe r than ever y
wee kend, as sug g ested by K.B
. Shawna also n o t ed t h at K. B. first made her outcry shortly afte r Shawna and Noland, frustra ted with K.B .’s g rade s, canc eled a vacation to Florida that K.B
. had been anticipating . Shawna testified tha t she believe d K.B . was ly ing a bout being abused by

Noland. After the close of evidenc e, the trial court found Noland g uilty
. The State announce d its intent to se ek enhanc ed punishment based on a prior conviction; Noland pleade d not tr ue to the enhanc ement. After a p u

n is h me n t hear ing, the trial court found the enhanc ement para g raph not true. 5 The court then sentenc ed Noland to forty y ear s’ imprisonment a

nd order ed him to pay court costs. Subsequent ly , Noland’s trial counsel withdrew from the case and Noland obtained
new counsel, who filed a motion for n ew trial. The motion alleg ed that Noland had rec eived ineffe ctive assist ance of counsel at t rial. At a hea ring on the motion, Noland called his e mploy er, Kevin Har

mon, who tes t i fi ed that he and sever al other individuals wer e prepa red to testify at

The parties stipulated that Noland had rec eived probation for a felony char g e of corr upting 5 a minor in Ohio in 1996. Noland’s attorney arg ued that the Ohio probation did not constitute a final conviction under

Texas law and ther efor e could not be use d to enhanc e punishment in Texas. 7Noland’s punishment hear ing but wer e never interviewe d or called to the stand. Noland also called

his trial counsel to testify about his service s, and trial counsel testified extensively as to various aspec ts of the trial and punishment. F or instance , trial counsel e x plained why he did not object to
cer tain testimony , how he used K.B .’s medical rec ords, and his strateg y at the punishment hear ing. Finally , Noland submitted sever al af fidavits conce rning trial counsel’ s work on the c ase. Following the hear ing, the trial court denied Noland’s motion. Noland now appea ls, claiming that defe nse counse l provided ineff ective a ssistance in numerous r espec ts.
STANDARD OF REVIEW We r e v ie w th e d e n ia l o f a mo ti o n f o r n e w tr ia l f

o r a n a b u s e o f d is c r e ti o n . Ch a r le

s v . State , 146 S.W .3d 204, 208 (Tex. Crim. App. 2004). Acc ording ly , when analy zing the trial court’s decision t o deny a new trial based on ineffe ctive assist ance of counsel, we view the relevant l eg al
s ta n d a r d s th r o u g h th e p r is m o f a

n a b u s e - o f

- d is c r e ti o n s ta

n d a r d
. S e e R a m ir e z v . S ta te , 3 0 1 S. W. 3 d 4 1 0 , 415 (Tex. App.—Austin 2009, no pet.). We do not substitut e our judgme nt for that of the trial court;
r a th e r , w e d e c id e w h e th e r th e tr ia l c o u r t’ s d e c is io n w a s a

r b it r a r y o r u nr e a s o n a b le
. Ch a r le

s , 1 4 6 S. W. 3 d at 208. We must view the evidenc e in the light most favor able to the trial court’s ruling and presume that all rea sonable fac tual finding s that could have been made ag ainst the losing party wer e so made. I d

. T h u s , a tr ia l c o u

r t a b u s e s it s d is c r e ti o n in d e ny in g a mo ti o n f

o r n e w tr ia l o n ly w h e n n o r e a s o n a b le view of the rec ord could support the tria l court’s ruling
. Id.

To preva il on a claim of ineffe ctive assistance of counsel, a defe ndant must show by a pre pondera

nce of the evidence that ( 1) counse l’s repr esenta tion fell below an obje ctive standa rd of re as o n ab l eness under the preva iling profe ssional norms and (2) the defic ient perf ormanc e 8prejudice d the defense. Strickland v. W a s h i ngton , 466 U.S. 668, 687 (1984); Hernande z v. Stat e , 726 S.W .2d 53, 57 (Tex. Crim. App. 1986). An ap p el l an t’s failure to satisfy one prong of the Strickland test neg ates a court’s need to consider the other prong . Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001) (citing Strickland , 466 U.S. at 697)
. Wit h reg ard to the f irst prong of the analy sis, we consider all o f t h e circ umstances with a “strong presumption that counsel’s perf ormanc e fe ll within t he wide r ang e of r easona bly profe ssional a ssistance.” Robertson v. State , 187 S.W .3d 475, 484 (Tex. Crim. App. 2006) (citing Strickland , 466 U.S. at 689). A defe ndant must show that no rea sonable trial strateg y could justify counsel’s conduct. Strickland , 466 U.S. at 689; State v. Bounhiza , 294 S.W .3d 780, 783 (Tex. App.—Austin 2009, no pet.).

To prove prejudice , a defe ndant must show that there is a rea sonable probability , or
a probability sufficie n t t o u n d er mine confide nce in the outcome, that the result of the proce eding would have been differ ent. Id
. at 694

. “I t is not enoug h for the defe ndant to show that the err ors had
some conce ivable eff

ect on the outcome of the proce eding .” Id. at 693. Rather, he must show that “ther e is a rea sonable probability that, absent the err ors, the fac tfinder would have had a rea sonable doubt respec ting g uilt.” Id. at 695.

A Strickland claim must be “firmly founded in the rec ord, and the rec ord must aff irmatively demonstrate” the meritorious nature of the claim. Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). Direc t appea l is usually an inadequa te vehicle for raising ineffe ctiveassistance claims beca

use the rec ord is g ener ally underde veloped. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). The rec ord in this case , howeve r, is mor e d ev el o p ed on direc t appea l beca

use of the hear ing held on Noland’s amende d motion for new trial. The hear ing fea tured testimony of def ense c ounsel and a ffidavits fr om multi ple witnesses. 9DISCUSSIO N I n a single point on appea l, Noland arg ues that defe nse counsel rende red ineffe ctive assistance of coun s el
. I n a list of eleve n “examples” of ineffe ctive assistance , Noland essentially complains about seven aspec ts of his tria l c ounsel’s perf ormanc e. Noland claims his a ttorney was ineffe ctive beca

use he: (1) failed to object to testimony , including testimony from the desig nated outcry witness in the case , that was inadmissible as hear say ; (2) failed to obtain disciplinary rec ords of the complaining witness; (3) failed to object to testimony by a CPS investiga tor expressing an opinion on the ultimate question; (4) prese nted the court with medical rec ords prejudicia l to Noland instead of prese nting, arg uing, or cross-e x am i ning witnesses using benef icial medical rec ords; (5) f ai l ed t o investiga te a prior allega tion by the complaining wit ness t hat would have discredited her; (6) provided err oneous advice reg arding the need for mitigation evidenc e befor e the court ruled
on an enhanc ement count at punishment; a nd (7) failed to interview potential defe nse witnesses or prese nt their testimony

at punishment. We will ex amine ea ch of the se conte ntions in t urn. Hearsay te stim ony

First, we consider Noland’s arg ument that he rec eived ineffe ctive assistance beca use his trial counsel fa iled to object to testimony prese nted by Vaug hn, the desig nated outcr y witness,
as well as CPS inves t i gat o r, J ordan, and K.B .’s friend, J .G. Noland arg ues that counsel should have objected to Vaug hn’s testimony conce rning statements m ad e b y K.B
. as hear say beca use the State f

a il e d to me e t th e s ta

tu to r y p r e r e q u is it e s f o r a d mi s s ib il it y o f o u tc r y w it n e s s te s ti mo ny . S

e e T e x. Co d e Crim. Proc. Ann. art. 38.072 (West 2005). L ikewise, Noland arg ues that counsel should have objected to testimony fr o m J ordan and J .G. about statements made by K.B as hear say . I n 10response , the State asser ts , an d we ag ree , that Noland has failed to rebut the strong presumption that counsel’s perf

ormanc e fell within the wide rang e of rea sonably p ro fe s sional assistance
. See Robertson , 187 S.W .3d at 483.

As a g ener al ru l e, h ea rs ay is not admissible unless it falls within an exception provided by

statute or the r

ules of evide nce. See Tex. R. Evi d. 802. Article 38.072 of the code of
cr i m i nal proce dure cre ates a hear say exception for cer tain statements made by a child victim of
cer tain sexual offe nses to the first person over the ag e of eig hteen. See Tex. Code Crim. Proc. Ann. art. 38.072. How ever , for suc h “outcr y witness” testimony to be admissible, the State must noti fy the defe ndant of its intent to offe r the outcry statement in advanc e of trial b y fo l lowing the notification require ments of article 38.072. Id
. art. 38.072(2)( b)(1)
. Fur ther, a trial court must find, in a hear ing conducte d outside the prese nce of the jury , that the statement is reliable based on time, content, and c ircumstance s of the stateme nt. Id . art. 38.072(2) (b)( 2).

I n this case , the State desig nated Vaug hn as the outcry wi t n es s , and Noland does not contend that the State in any way failed to proper ly notify him of its intention to prese nt Vaug hn
as an outcry witness under article 38.072. See Tex. Code Crim. Proc. Ann. art. 3 8.072(2)( b)(1)
. Rather, Noland contends that Vaug hn’s testimony conce rning K.B .’s outcry is inadmissible hear say beca use the court failed to conduct a hear ing and find that the outcry statement is reliable
. Howeve r, to succe ssfully asser

t that trial counsel ’ s f

a ilure to object to Vaug hn’s testimony as hear say amounted to ineffe ctive assistance , Noland must show that the trial judge would have committed er ro r in
overr uling the hear say objection. Ex parte Martinez , 330 S.W .3d 891, 901 (Tex. Crim. App. 2011). There is nothing in the rec ord that indicates t h at the court conducte d a hear ing or made a finding that the outcry statement made to V aug hn is r eliable; further , nothing in the rec ord 11indic at es t h at ei ther party reque sted such a hear ing. Howeve r, if trial counsel had objected to

Vaug hn’s testimony as hear say on the g round that the court had failed to c onduct an article 38.072 hear ing, it is li kely that the court would have then conducte d the hear ing, to the extent nece ssary , to deter mine the reliability of the outcry statement. See Sanchez v. State , 354 S.W .3d 476, 488 (Tex Crim. App. 2011) (“Tr ial courts have g rea t discretion in how they manag e their Article 38.072 hear ings.” ). Moreove r, Noland fai l s t o show that the court, focusing on the “time, content, and circ umstances” of the outcry statement, would have found it to be unreliable
. The rec ord befor e us does not support the conclusion that, upon objection, the trial court would have committed err or in ultimately admitting Vaug hn’s testimony
. See Strickland , 466 U.S. at 689. Acc ording ly , we cannot conclude that counsel’s f

ailure to objec t to Vaug hn’s testimony as hea rsay was de ficient. I n addition, the rec ord shows that despite having the opportunity at the hear ing on the motion for new t rial, Noland failed to que stion trial counsel about his rea sons for not objecting to Vaug hn’s testimony
. As a result, counsel was not g iven an opportunity to e x plain his a ctions, and the rec ord is silent as to counsel’s rea soning or strateg y for not objecting to Vaug hn’s testimony
. See Goo d s p ee d , 187 S.W .3d at 392 (“Tr ial counsel should ordinarily be g iven an opportunity to
ex plain his acts or omissions befor e being denounce d as ineffe ctive.”) Id
. Where tr i al co u n s el ’s
rea sons for failing to do something do not appea r in the rec ord, the rec ord on direc t appea l is g ener ally inadequa te to demonstrate defic ient perf ormanc e. Id
. On the rec ord befor e us, without knowing the rea sons for counse l’s decision for failing to obje ct to V aug hn’s testimony , we cannot conclude that trial counsel’s perf ormanc e fell bel o w an o bjective standard of rea sonablene ss. Id
. (q u o t i n g Ga r cia v. State , 57 S.W .3d at 440) (“A bsent such an opportunity , an appellate court should not find defic ient perf o rm an ce unless the challeng ed conduct ‘wa s so outrag eous that

12no competent attorney would have eng ag ed in it.’”); see Lopez v. Stat e , 3 4 3 S.W .3d 137, 143-44

(Tex. Crim. App. 2011) (holding that appellant failed to demonstrate defic iency as to trial counsel’s d ec i s i on to not reque st an article 38.072 hear ing beca use “the rec ord [was] silent as to why t ri al counsel fa iled to object”)
.

Simi larly , Noland has failed to establish that no rea sonable trial strateg y could justify counsel’s failure to object to the testimony of J ordan and J .G. See Strickland , 466 U.S. at 689. At the hearing on the m otion for new t rial, counsel testified t hat he was aware that Vaugh n had been desig nated by the S tate as the out cry witness. Howeve r, ac cording to counsel’s testim ony , K.B .’s
cre dibilit y was a primary issue in the case , and he believed the statements of J .G. and J ordan would discredit K.B . by

demonstrating conflicts in her differ ent repor

ts of abuse. Consist ent with this strateg y , counsel cross-e x amined K.B
. with reg ard to differ ent statements she had made
conce rning the dates of the alleg ed abuses. I n ad d i t i o n, in closing arg ument, counsel discussed K.B .’s i nconsistent statements, especially with reg ard to t h e d at es of t he allege d occur renc es, and her overa ll inability to tell the truth. Ba sed on trial counsel’s testimony at the hear ing, the trial court could have rea sonably

conclude d that a sound trial strate g y supported his decision not to object to th e te s ti mo ny a

t is s u e . S e e S tr ic k la n d , 4 6 6 U
. S. a

t 6 8 9 ; s e e a ls o E

v e r e tt v . S ta te , N o . 0 4

- 0 3

- 0 0 7 0 9

- CR , 2 0 0 5 T ex. App. L EXI S 795, at *20 (Tex. App.—San Antonio Fe b. 2, 2005, no pet.) (mem. op. ) (holding that ineffe ctive assistance was not proven wher e counsel testified that he permitted hear say te s ti mo n y o f a d d it io n a l o u tc r

y w it n e s s e s in o r d e r to s h o w in c o n s is te n c ie s in c o mp la in a n ts ’ s ta te me n ts , even though another attorney might have pursued a differ ent strateg y ). Fr om the rec ord befor e us,
we cannot conclude that counsel’s perf ormanc e fell below an objective standard of rea sonablene ss.

13But even if counsel’s p er formance was defic ient, Noland fails to prove that his

defe nse was prejudice d as a result. See Strickland , 466 U.S. at 687, 694–95. Noland arg ues that the testimony of J ordan, J .G., and Vaug hn prejudice d Noland’s case beca use the testimony “ser

ved only to enhanc e/bolster [K.B.]’s cre dibilit y —the sole issue in the case ! There is a rea sonable probability that it impacted the fac t finder’ s verdic t!” Howeve r, Noland has prese nted no evidenc e, either in his motion fo r n ew trial or at the hear ing, that counsel’s alleg edly defic ient perf ormanc e prejudice d his defe nse. See Mitchell v. State , 989 S.W .2d 747, 748 (Tex. Crim. App. 199 9) (explaining that aff irmative proof

of prejudice is r equire d); Bazanes v. State , 310 S.W .3d 32, 43 (Tex. App.—For t Worth 2010, pet. ref

’d) (re jecting prejudice arg ument simil ar to Noland’s)
. I nstead, the evidenc e at trial ag ainst Noland, even apar t from the testimony that Noland now compl ai n s was wrong fully admitted, was c onsiderable and supports the c ourt’s finding of g uilt. See E vere tt , 2005 Tex. App. L EXI S 795, at *20 (“When inadmissible testimony is disreg arde d, if the rema ining evidenc e is still sufficie nt to support a jury finding of g uilt, then the a ppellant has failed to show prejudice .”). F or
ex ample, the trial court heard K.B.’s acc ount of ongoing sexual abuse by Noland. The court then hear d testimony from her g randf ather , J err

y Upshaw, sug g est ing that K.B
. was rec overing from her past psy chiatr i c problems, had develope d into a normal teena g er, and could be trusted on major issues. Conversely , the trial court hear d testimony that Noland made mult i p l e, co n flicting admissions to discussing sexual acts with K.B
. and permitting her t o t ry o n l i ng erie
. As the sole judge of the c redibility

of the witnesse s, the trial court c ould have r easona bly conclude d from this evidence t h at the outcome of Noland’s trial would not have been differ ent, even if counsel had objected to the te stimony of Va ug hn, J ordan, a

nd J .G.

14Viewing the evidenc e in the lig ht most favor able to the t rial court’s ruling , Noland

has failed to prove both defic iency and prejudice with respe ct to his claim that counsel should have objected to the te stimony of Va ug hn, J ordan, a

nd J .G. See Strick

land , 466 U.S. at 668, 687.
P rese ntation of

discip linary recor ds Noland also arg ues that counsel provided ineffe ctive assista n ce in failing to investiga te and prese nt K.B .’s disciplinary rec ords from the alterna tive school i n t h e Belton I ndepende nt School District. Howeve r, Noland has not provided the rec ords at issue, with the result that their contents are unknown to this Court. Acc ording ly , we cannot evalua te whether the rec ords
wer e rele vant to Noland’s defe nse or whether any prejudicia l eff ect resulted from their omission at trial. See Goodspee d , 187 S.W .3d at 390 (noting that Strickland claim must be “firmly founded in the re cord” and that “the rec ord must affir matively demonstrate” meritorious nature of cla im). Opin ion testim ony on th e ultim ate issue

Next, we consider Noland’s arg ument that he rec eived ineffe ctive assistance beca use counsel failed to obje ct to the CPS investiga tor’s opinion testimony on the ultimate issue. Noland
c o mp la in s th a

t c o u n s e l s h o u ld h a

v e o b je c te d w h e n Jo r d a

n , w h o w a s n o t e s ta

b li s h e d a s a

n e xp e r t, g a v e opinion t es t i m ony that CPS found “re ason to believe” Noland had sexually abused K.B
. Noland also claims this testimony “totally usurped the pr ovince of

the fa ct finder by

providing the answe r to the ultimate question.” The State contends that J ordan’ s statement did not constitute an opinion
as to K.B .’s truthfulness but rathe r a confirma tion that CPS had found g rounds to remove K
. B
. f r o m h e r h o me . H o w e v e r , w e n ee d n o t d e te r mi n e if Jo r d a

n e xp r e s s e d a

n o p in io n o n th e u lt im a

te issue, beca use eve n if she had, N oland would be una ble to show defic ient perf ormanc e in this respec t. 15Rule 701 of the Texas Rules of Evidence provides that a lay witnesses may express

opinions if they are “ra

tionally based on the perc eption of the witness” and “helpf ul to the clea

r understanding of the witness’s testimony or the deter mination of a fac t in issue.” Tex. R. Evid. 701. The rec ord shows that J ordan’ s testimony was rationally based on h er o b s erva tions while in v e s ti g a ti n g th e N o la

n d f a mi ly o n b e h a lf o f CP S. S

e e E x P a r te W h it e , 1 6 0 S. W. 3 d 4 6 , 5 3 ( T e x. Cr im
. App. 2004). Fur

ther, rule 704 pro v i d es t h at “[ t] estimony in the form of an opinion or infere nce otherwise admissible is not objectionable beca use it embra ces an ultimate issue to be decide d by the trier of fac t.” Tex. R. Evid. 704; see Ortiz v. Stat e , 834 S.W .2d 343, 348 (Tex. Crim. App. 1992) (“‘ invades the province of the jury ’ is no longe r a valid objection to opinion testimony ”). Thus, even if J ordan’ s statement constituted an opinion, the testimony was admissible unde r rule 701 and rule 704 of the rule s of evidenc e. Counsel’s decision not to object wa s not even in er ror, much le ss an instance of defic ient perf

ormanc e. See Bradley v. State , 359 S.W .3d 912, 919 (Tex. App.—Houston [14t h Dist.] 2012, no pet.); Cooper v. State , 707 S.W .2d 686, 689 (Tex. App.—Houston [1st Dist.] 1986, pet. ref

’d) (“Counsel' s failure to object to admissible testimony does not constitute ineffe ctive assistance of counse l.”); see also Garcia , 57 S.W .3d at 440.
P rese ntation of

cer tain m edical rec ords Noland further arg ues that counsel was ineffe ctive in making use of K.B .’s medical
rec ords. At trial, all of K.B .’s medical rec ords wer e admitted as evidenc e, but defe nse counsel also p r e s e n te d th e c o u

r t w it h a s h o r te r e xc e r p t o f th e r e c o r d s f

o r e a s e o f r e f

e r e n c e . A c c o r d in g to N o la n d , this excerpt contained documents that were detrimental to Noland, and counsel was there fore defic ient in c alling attention to it while f ailing to pr esent, a

rg ue, or cross-e x amine witnesses using 16other portions of the medical rec ords that wer e more favor able to the defe nse. Noland alleg es that

these e rror s serve d to enhanc e K.B .’s cr edibility at Noland’ s expense. Al l o f K.B .’s medical rec ords, including those ref lecting her extensive psy chiatric history , wer e admitted at trial and there fore befor e the trial court to consider in deter mining Noland’s g uilt. Fur ther, the rec ord shows that trial counsel made substantial eff orts t o d i s cr ed it K.B
. using these rec ords. I n fac t, counsel cross-e x amined K.B
. about many of the fac ts rec ited in the medical
rec ords that Noland now claims wer e favor able to his defe nse and should have been emphasized. For instance, counsel cross-e x amined K.B
. about her possession of alcohol at school, as well as her history of self-mutilation and acting out sexually
. I n addition, counsel cross-e x amined K.B
. about the discrepa

ncies in the dates when she claimed to have been abused and about multipl e lies she told while hospitaliz ed. I n closing arg ument, counsel direc ted the court to K.B .’s medical rec ords, arg uing that they indicate that K.B
. “is a y oung lady who has had a time be ing able to te ll the truth about things.” T h u s , t h e fa ct that Noland’s attorney declined to take any additional approa ch to discredit K.B
. by emphasizing a differ ent portion of her medical rec ords is insufficient to overc ome th e s tr o n g p r e s u

mp ti o n o f r e a s o n a

b ly p r o f e s s io n a l a s s is ta

n c e . S e e S tr ic k la n d , 4 6 6 U
. S. a

t 6 8 9
. N o la

n d there fore fails to establish defic ient repr esenta tion with respect to K.B .’s medica l rec ords. See id.
P rior allegat ion b y K.B.

Noland next arg ues that his attorney was defic ient in failing to investiga te and prese nt the fac t that, in K.B .’s prior alleg ation of sexual assault by her friend’ s older brother, K.B
. orig inally claimed he had rape d her forc ibly but later admitted to her mother that she had lied and the encounte r
was not forc ible. Noland claims that this prior alleg ation and subsequent admission could have been used to discredit K.B
. at trial. Howeve r, Noland does not establish that his attorney ’s perf ormanc e 17was defic ient in this respe ct. As previously discussed, counsel made signific ant eff orts to impeach K
. B
. ’ s c r e d ib il it

y a t tr ia l. T h e f

a c t th a t c o u n s e l c o u ld h a

v e p u r s u e d a n a d d it io n a l me a

n s o f d is c r e d it in g her fails to overc ome the strong presumption of that couns el p ro vided rea sonable profe ssional assistance
. See generally id. at 689. Noland fails to prove that he rec eived ineffe ctive assistance reg arding this prior alleg ation by K.B
.
P rese ntation of

evidence prior t o enhancem ent ruling Next, we addre ss Noland’s complaint conce rning counsel’s reque st for the trial court to rule on the enhan ce m en t p ar ag raph befor e the prese ntation of punishment evidenc e. Noland’s attorney asked the court to rule on the enhanc em en t at t h e outset of the punishment hear ing,
rea soning that the automatic life sentenc e that would result if the court found the enhanc ement to be true would eliminate t he need for further punishment evidenc e. Howeve r, t he trial court declined to rule befor e hear ing testimony
. Noland asser ts that counsel’s reque st ref lected a misunderstanding
o f th e a p p li c a b le la w th a t r e s u lt e d in in e f

f e c ti v e a s s is ta

n c e . H o w e v e r , h e f

a il s to s u p p o r t th is a r g u me n t with proof of e ither def

icient per formanc e or pr ejudice. First, counsel’s testimony at t he new- trial hear ing included an explanation of his strateg y in making the complained- of reque st. At issue befor e the court was whether Noland’s prior char g e in Ohio for corr

upting a minor could be used to enhanc e Noland’s punishment in the curr ent proce eding
. Counsel t es t i fi ed t hat he did not want the trial court to hear any details of t he charg e ag ainst Noland i n Oh i o befor e assessing punishm ent. Acc ording to counsel, he knew that cer tain witnesses he intended to c all wer e awa re of the char g e and would have to discuss it if asked by the State. To reduc e that possibili ty , counsel testified, he pref err ed to question these witnesses once the 18court had alre ady found the enhanc ement based on the Ohio conviction not true. Viewe d in the light

most favor able to the t rial court’s ruling , this testimony supports a finding by the t rial court that a
rea sonable trial strateg y supported counsel’s conduct in making the request. Strickland , 466 U.S. at 689; Bounhiza , 294 S.W .3d at 783.

I n addition, ev en i f t he reque st was improper, the trial court declined the reque st,
rec eived evidenc e in support of Noland, and ultimately found the enhanc ement not t ru e. After hear ing this evide nce, the court a ssessed punishment at for ty y ear s’ imprisonment, f ar shor t of the li f e s e n te n c e it c o u ld h a

v e im p o s e d u n d e r th e s ta

tu to r y g u id e li n e s . S

e e T e x. Pe n a l Co d e A nn . § 1 2
. 3 2 (West 2011), § 22.021. Consequently , it is unclea r how counsel’s reque st or the timing of the ruling in Noland’s favor had any neg ative impact o n t he outcome of the punishment hear ing. See id. Noland has not provided aff irmative proof of prejudice from any defic ient perf ormanc e by counsel on this iss ue. See M

itchell , 989 S.W .2d at 748; Bazanes , 310 S.W .3d at 43. Acc ording ly , the trial court would have been rea sonable to conclude that no prejudice occur red. See Ramirez , 301 S.W .3d at 415; Charles , 146 S.W .3d at 208.
Addition al pu nish m ent witnesses

Finally , Noland complains th at t ri al counsel should have interviewe d additional witnesses, such as Noland’s mother, his employ er, and various friends and acqua intances of Noland, and prese nted their testimony at the punishment hear ing. Noland set s fo rt h ex tensive mitigation testimony that he claims these witnesses would have g iven and co n cl udes that counsel was ineffe ctive for

failing to call them to the stand.

19After th e trial court declined to rule on the enhanc ement, the defe nse called two

witnes s es : a rea ltor, who testified to Noland’s reliability and trustworthiness as a provider of air conditioning repa ir, and Shawna, who testified as to Noland’s family obliga tions. The defe nse also introduced three letters in support o f Noland. The court then assessed punishment at forty y ear s’ imprisonment as descr ibed above
.

Fr om the rec ord befor e us, Noland fails to show that n o re as onable trial strateg y could justify counsel’s failure to call the additional witnesses. See Strickland , 466 U.S. at 689. As previously discussed, counsel testified at the hear ing on the motion for new trial that sever al of the witnesses wer e awa

re of the Ohio char g e and would have been able to g ive detai l s o f t h e char g e
o n cross-e x amination. Thus, once the court ref used to rule on the enhanc ement prior to h ea ri n g
ev i d en ce , t h ere was a risk that cross examination of these witnesses could influence the court’s ruling on the enhanc ement. By prese nting char ac ter witnesses by aff idavit, counsel succe ssfully avoided this risk. Be cause this constitutes a rea sonably sound strateg ic motivation, Noland fails to establish that counsel’s decision to not call the additional witnesses was outside t h e range of
rea sonably

profe ssional assistance. Fur ther, Noland ag ain fails to prove that the alleg ed er ro r re s ulted in prejudice to his de fense
. See Cash , 178 S.W .3d at 818 n.6; Garcia , 57 S.W .3d at 440. Noland fails to e x plain how an y fu rt h er testimony would have cause d him to rec eive an even lesser sentenc e than forty y ear s’ imprisonment for ag g rava ted sexual assault of a child. Acc ording ly , the trial court could have deter

mined that there was no rea sonable probability that Noland’s pu n i s hment would have been differ ent but for counsel’s alleg ed failure to question addit i o n al wi t n esses. See Strickland , 466 U.S. at 694. 20Wit h respe ct to eac h of Noland’s “examples” of ineffe ctive assistance of counsel,

we have deter

mined that Noland has failed to demonstrate either defic iency , prejudice , or both. See Strickland , 466 U.S. at 687; see also Garcia , 57 S.W .3d at 4 4 0
. M o reover, we cannot say that t h e t o t ali ty of repr esenta tion rec eived by Noland fell below an objective standard of profe ssio n al
norms. See Robertson v. State , 187 S.W .3d 475, 483 (Tex. Crim. App. 2006). Cf. Garcia v. State , 308 S.W .3d 62, 76 (Tex. App.—San Antonio 2009, no pet.) (holding that totality of repr esenta tion
was ineffe ctive wher e counsel g ave err on eo us community supervision advice resulting in jury waiver , called de fenda

nt to testify

about prior bad acts, and fa iled to rea liz e that applica ble statute did not authorize “outcr

y ” testimony as to adult complainant). Consequently , the trial court did not abuse its discretion in deny ing Noland’s motion for new t ri al
. S ee Ramirez , 301 S.W .3d at 415. Noland’s sole point on appe al is overr uled.
CONCLUSION We affir m the trial court’ s judgme nt.

__________________________________________ Diane M. H enson, Jus tice Be fore J ustices Pury ear , Henson a nd Goodwin Affir med Filed: Jul y

20, 2012 Do Not Publish

21