NO. 12-18-00215-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DANNY DEE HELDENBRAND, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 7TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Danny Dee Heldenbrand appeals his conviction for indecency with a child. In one issue,

Appellant argues that he received ineffective assistance of counsel. We affirm.

BACKGROUND

Appellant was charged by indictment with indecency with a child by sexual contact. He 

pleaded “not guilty,” and the matter proceeded to a jury trial. 

At trial, the evidence showed that Appellant often held his young daughter, S.H., from 

behind while in bed with his erect penis touching her legs. On one occasion, when S.H. was around 

twelve years old, Appellant paid her in snacks to draw on his back with a pen. While she was 

doing so, he allowed his erect penis to touch her leg. 

Ultimately, the jury found Appellant “guilty” and assessed his punishment at imprisonment 

for sixteen years. This appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL

In Appellant’s sole issue, he contends that his trial counsel was ineffective because he 

failed to object to outcry testimony from multiple witnesses.
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Standard of Review and Applicable Law

In reviewing an ineffective assistance of counsel claim, we follow the United States 

Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). 

Under the first prong of the Strickland test, an appellant must show that counsel’s performance 

was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 

712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must “show that 

counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688, 

104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the “deficient performance prejudiced 

the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The 

appropriate standard for judging prejudice requires an appellant to “show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. A 

reasonable probability is a probability sufficient to undermine confidence in the outcome. 

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. An appellant claiming 

ineffective assistance of counsel must affirmatively prove prejudice from counsel’s deficient 

performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999).

Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712. We 

indulge in a “strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is Appellant’s burden 

to overcome the presumption that, under the circumstances, the challenged action might be 

considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any allegation of 

ineffectiveness must be firmly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 

1999). Rarely is the record on direct appeal sufficiently developed to fairly evaluate the merits of 

a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). 

Failure to make the required showing of either deficient performance or sufficient prejudice 

defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove both prongs 
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of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 

712. 

Analysis

Appellant argues that S.H.’s mother, Marie, was the proper outcry witness for most of the 

allegations and his defense counsel was ineffective because he did not object to S.H.’s counselor’s 

testimony about the same allegations. Consequently, he contends that we should reverse his 

conviction and remand the case for a new trial. We disagree.

The code of criminal procedure allows the admission of a hearsay statement by a child 

victim describing an alleged sexual offense to an outcry witness. TEX. CODE CRIM. PROC. ANN.

art. 38.072, §§ 1(1), (2) (West Supp. 2018). The outcry witness is the first person eighteen years 

of age or older, other than the defendant, to whom the child made a statement about the offense. 

Id. art. 38.072, § 2(a)(3). Hearsay testimony from more than one outcry witness is admissible only 

if the witnesses testify about different events. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. 

App. 2011).

Here, the evidence shows that S.H. told multiple people about the incident in which 

Appellant’s penis touched her leg while she was drawing on him. Both Marie and a counselor 

testified regarding the allegation, and the repetitive testimony would not have been admissible over 

a defense objection. See id. Nonetheless, Appellant cannot prevail in his ineffectiveness claim. 

The court of criminal appeals addressed ineffectiveness in a similar case. See id. In Lopez, 

three outcry witnesses testified to the same events without objection. See id. The court of criminal 

appeals held that the appellant failed to meet his burden under the first prong of Strickland because 

the record was silent as to why defense counsel did not object and the appellant did not produce 

any additional information about defense counsel’s reasons for allowing the testimony. See id. at 

144. The same is true in this case. 

The record here does not affirmatively show why defense counsel failed to object to the 

repetitive outcry testimony, and thus Appellant cannot overcome the presumption that, under the 

circumstances, such failure might be considered sound trial strategy. See Strickland, 466 U.S. at 

689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 813; see also Lopez, 

343 S.W.3d at 144. Because Appellant failed to meet his burden under the first prong of 

Strickland, we cannot conclude that counsel rendered ineffective assistance. See id. Accordingly, 

we overrule Appellant’s sole issue.
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DISPOSITION

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

GREG NEELEY

Justice

Opinion delivered April 10, 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

APRIL 10, 2019

NO. 12-18-00215-CR

DANNY DEE HELDENBRAND,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 7th District Court 

of Smith County, Texas (Tr.Ct.No. 007-1587-17)

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.

Greg Neeley, Justice.

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