NO. 12-18-00179-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TERESA JANE MATTESON, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEAL FROM THE 294TH 

JUDICIAL DISTRICT COURT

VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

Teresa Jane Matteson appeals her conviction for continuous sexual abuse of a child. In 

one issue, she argues that she received ineffective assistance of counsel. We affirm.

BACKGROUND

Appellant was the custodial guardian of the child victim in this case. The Texas 

Department of Family and Protective Services (the Department) placed the victim with Appellant 

when he was less than a year old. At the time of the placement, the Department believed Appellant 

was the victim’s paternal grandmother. 

In June 2015, the Department received a report that Appellant was neglecting the victim. 

Jennifer Smith, a Department investigator, attempted to locate Appellant and the victim for two 

months with no success. After learning that the victim missed a doctor’s appointment and did not 

receive his medication, Smith obtained a court order to remove the victim from Appellant’s care. 

Still unable to locate the victim, Smith contacted the news media. An alert publishing a photograph 

of the victim and requesting the public’s assistance in locating him was released. On September 

4, Appellant brought the victim into the Department’s custody, and he was removed from 

Appellant’s care. Appellant was required to participate in a family service plan to determine the 

victim’s future placement. 
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Subsequently, the victim’s mother told the Department that the individual believed to be 

the victim’s biological father was not his father; thus, Appellant was not the victim’s biological 

grandmother. The Department contacted and verified the biological father’s identity, and later 

determined that the victim should be placed with the father. Thereafter, when discussing the 

scheduling of a “goodbye visit” with Appellant, the victim told Nancy Harris, a Department 

caseworker, that Appellant sexually abused him. The victim was taken to the children’s advocacy 

center and interviewed by Patty Flowers, a trained forensic interviewer. During the interview with 

Flowers, the victim described being sexually assaulted multiple times by Appellant in various 

locations throughout Van Zandt County, Texas. 

Appellant was arrested and charged by indictment with continuous sexual abuse of a child. 

She entered a plea of “not guilty” and a jury trial followed. At trial, the State asked that the victim 

be allowed to testify by closed circuit television. Initially, Appellant’s trial counsel objected, but 

after the trial court questioned the victim outside the presence of the jury, Appellant’s counsel 

agreed to allow the victim to testify by closed circuit television. 

The victim testified that he lived with Appellant, who he believed was his grandmother, 

prior to being removed by the Department. He testified that Appellant insisted he and Appellant 

sleep nude together in her bed. He testified that when he was five or six Appellant began making 

him engage in sexual activity with her. Specifically, he testified that Appellant touched his sexual 

organ and buttocks, made him insert his sexual organ into Appellant’s sexual organ, and made him 

touch her sexual organ and anus with his hand. The victim testified that Appellant made him 

perform these acts almost daily. 

In addition to the victim’s testimony, the State called Smith and Harris, who testified about 

their involvement prior to the victim’s outcry. The State called Flowers and admitted the victim’s 

forensic interview and his written statements made during the interview into evidence. The State 

called William Crawford, an investigator with the Van Zandt County District Attorney’s Office, 

and through Crawford, admitted various notes that Appellant sent to the victim while he was in 

the Department’s custody. 

Appellant called two witnesses: the victim’s mother’s close friend, Brianne Rogerson, and 

the victim’s aunt, Felicia Malone. Both women testified that the victim had a bad reputation for 

truthfulness and lied frequently. Both also testified that they loved the victim and had no 

significant relationship with Appellant.
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Ultimately, the jury found Appellant “guilty” and the court sentenced her to life in prison. 

This appeal followed. 

INEFFECTIVE ASSISTANCE OF COUNSEL

In one issue, Appellant complains that her trial counsel’s performance fell below an 

objective standard of reasonableness and there is a reasonable probability that the result would 

have been different had her trial counsel performed adequately. 

Standard of Review and Applicable Law

Claims of ineffective assistance of counsel are evaluated under the two step analysis 

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The 

first step requires the appellant to demonstrate that trial counsel’s representation fell below an 

objective standard of reasonableness under prevailing professional norms. See Id., 466 U.S. at 

688, 104 S. Ct. at 2065. The second step requires the appellant to prove that trial counsel’s 

deficient performance prejudiced his defense. Id., 466 U.S. at 692, 104 S. Ct. at 2067. 

To satisfy the first step, the appellant must identify the acts or omissions of counsel alleged 

to be ineffective assistance and affirmatively prove that they fell below the professional norm of 

reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), abrogated 

on other grounds by Mosley v. State, 985 S.W.2d 249 (Tex. Crim. App. 1996). The reviewing 

court will not find ineffectiveness by isolating any portion of trial counsel’s representation, but 

will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 

104 S. Ct. at 2069.

In any case considering the issue of ineffective assistance of counsel, we begin with the 

strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. 

Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably professional 

and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this 

presumption by presenting evidence illustrating why his trial counsel did what he did. See id.

Appellant cannot meet this burden if the record does not affirmatively support the claim. See 

Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal 

to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 

S.W.2d 928, 932 (Tex. App.—Corpus Christi 1992, pet. ref’d, untimely filed) (inadequate record 

to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App.—
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Amarillo 1998, pet. ref’d) (inadequate record for ineffective assistance claim, citing numerous 

other cases with inadequate records to support ineffective assistance claim). A record that 

specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an 

ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 

1994, pet. ref’d).

Appellant’s burden on appeal is well established. See Saenzpardo v. State, No. 05-03-

01518-CR, 2005 WL 941339, at *1 (Tex. App.—Dallas Apr. 25, 2005, no pet.) (op., not designated 

for publication). Before being condemned as unprofessional and incompetent, defense counsel 

should be given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828, 

836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance 

claim must usually be denied as speculative, and cannot be built upon retrospective speculation. 

Id. at 835.

Analysis

Appellant argues that her counsel was ineffective because he failed to (1) request notice of 

bad acts and object to the admission of testimony that Appellant failed drug tests during the 

Department’s case; (2) object to the admission of written statements the victim made during the 

forensic interview; (3) object to the admission of the videotaped forensic interview of the victim; 

and (4) object to the victim testifying by closed circuit television. 

However, the record before this Court is largely silent about trial counsel’s defensive 

strategy or the reasoning for his actions during the trial. Generally, a silent record cannot defeat 

the strong presumption that counsel was effective. See Garza v. State, 213 S.W.3d 338, 348 (Tex. 

Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 813-24 (Tex. Crim. App. 1999); but see 

Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (appellate court should not find 

deficient performance unless challenged conduct “so outrageous that no competent attorney would 

have engaged in it” from an undeveloped record); Andrews v. State, 159 S.W.3d 98, 102-03 (Tex. 

Crim. App. 2005) (reversing conviction “in a rare case” on basis of ineffective assistance of 

counsel).

In Andrews, the prosecutor filed a motion to cumulate the appellant’s sentences in three 

counts of sexual assault and one count of indecency with a child. 159 S.W.3d at 100. Thereafter, 

the prosecutor told the jury in closing argument that the sentences the jury assessed would run 

concurrently. Id. Trial counsel made no objection to the prosecutor’s argument, despite it being 
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a misstatement of the law. Id. The trial court granted the State’s motion to cumulate the 

appellant’s sentences, resulting in a combined prison sentence of seventy-eight years. Id. In 

reversing the appellant’s conviction, the court reasoned that the prosecutor’s argument left the jury 

with the false impression that the appellant’s sentences could not be ordered to be served 

cumulatively, and that appellant would serve no more than twenty years for all four counts. Id. at 

103. Therefore, the court held, that under the “extremely unusual circumstance of [the] case,” the 

record contained all of the necessary information it needed to conclude that there could be “no 

reasonable trial strategy for failing to object” to the prosecutor’s misstatement of the law. Id. 

Appellant’s case is unlike the unusual circumstances found in Andrews, because counsel’s 

reasons in Andrews were unnecessary to resolve the ineffective assistance of counsel claim. See 

Berry v. State, No. 05-04-01161-CR, 2005 WL 1515512, at *3 (Tex. App.—Dallas June 28, 2005, 

no pet.) (op.; not designated for publication). Counsel’s failure to object to a misstatement of the 

law, which is unquestionably detrimental to one’s client, when the harm is so clearly presented on 

appeal is quite unlike counsel’s decision not to object to testimony or evidence as a matter of trial 

strategy. See Lopez v. State, 343 S.W.3d 137, 143-44 (Tex. Crim. App. 2011) (appellant failed to 

show counsel was ineffective in failing to object to three outcry witnesses who gave similar 

testimony because record was silent as to counsel’s reasons for doing so); Ingham v. State, 679 

S.W.2d 503, 509 (Tex. Crim. App. 1984) (isolated failure to object to certain procedural mistakes 

or improper evidence does not constitute ineffective assistance of counsel); Melonson v. State, 

942 S.W.2d 777, 782 (Tex. App.—Beaumont 1997, no pet.) (appellant failed to provide required 

authority in support of argument that objections would have been meritorious); Gilbert v. State, 

No.14-02-00727-CR, 2003 WL 22176625, at *3 (Tex. App.—Houston [14th Dist.] Sept. 23, 2003, 

no pet.) (mem. op., not designated for publication) (assuming arguendo that extraneous offense 

evidence was inadmissible, trial counsel’s failure to object not ineffective assistance in absence of 

any evidence of trial counsel’s strategy); see also, e.g., Walker v. State, No. 12-13-00076-CR, 

2014 WL 357193, at *2 (Tex. App.—Tyler Jan. 31, 2014, pet. ref’d) (mem. op., not designated for 

publication) (failure to object to hearsay not ineffective assistance of counsel because counsel’s 

reasons not demonstrated by record). 

Having reviewed the record in the instant case, we conclude that the facts before us are 

distinguishable from the facts in Andrews and Appellant’s trial counsel’s alleged deficient conduct 

is not “so outrageous that no competent attorney would have engaged in it.” See Menefield, 363 
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S.W.3d at 593. We hold that the record before us does not contain all of the information needed 

for us to conclude that there could be no reasonable trial strategy for Appellant’s trial counsel’s 

alleged unprofessional acts. See Bone, 77 S.W.3d at 835. Therefore, we hold that Appellant has 

not met her burden to satisfy the first prong of Strickland as set forth above because the record 

does not contain the requisite evidence for us to conclude that there could be no reasonable trial 

strategy for Appellant’s trial counsel’s alleged deficient acts, and Appellant cannot overcome the 

strong presumption that her counsel performed effectively. See id.; see also Jackson, 877 S.W.2d 

at 771. Because we so hold, we need not consider the second prong of Strickland. See Lopez, 

343 S.W.3d at 144. Appellant’s sole issue is overruled. 

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the judgment of the trial court. 

BRIAN HOYLE

Justice

Opinion delivered May 31, 2019.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 31, 2019

NO. 12-18-00179-CR

TERESA JANE MATTESON,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 294th District Court 

of Van Zandt County, Texas (Tr.Ct.No. CR16-00542)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.