### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 528 -CR

Er ic M ic hae l Wh it e , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF B ELL COUNTY , 264TH JUDICIAL DISTRICT

NO. 6164 3 , HO NORAB LE JO E CARROLL , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ur y fo un d E ri c Mi chael W hi te g uil ty of inj ur y to a c hil d w ithint e nt t o c a

us e serious bodily

injury , a first-de g ree felony
. See Tex. P enal Code A nn. § 22.04(a) (1), (e) (West Supp. 2009). The tr ial court a ssessed W hite’s puni shment at l ife im prisonment. I n his sole point of error , Whi te contends that the trial court e rre d in denying his motion for ne w trial base d on ineffe ctive assistance of t rial counsel. Be cause we conclude that W hite did not carr y his burden of pr oving that his trial counsel provided ine ffe ctive assistanc e, we aff irm the trial cour

t’s judgme nt.
BACK GR OUND At about 9 p.m. on May

30, 2007, J oly

nn Cammisa left her home to pick up beer for Whit e, her

live-in boy friend. Whit e had asked her to g et the beer from a room he had at his barr acks on For t Hood. At first, Cammisa planned to take her se ven-month-old daug hter, S.B., w ith her on th e erran d. I n p repa rat io n for do in g s o, sh e chan ged S .B.’ s d iap er an d cl ot hes . S he t hen lai d S .B.2

on a mattre ss on the floor next to a computer whe re W h i t e wa s p laying vide o g ames. She a sked W hite to w atch the baby while she g ot dr essed to le ave. When Cammisa r eturne d after d re s s i n g, Whit e wa s p a tti ng S.B . on he r ba c k, and S.B . h a d f a lle n a sle e p. Whit e tol d Ca mmi sa that sh e c ou ld leave S.B. at home a

nd he would take car e of her. Cammisa testified at trial that White had had “ a few beer s” at the time she le ft the house.

Cammi sa te sti fi e d tha t it too k he r ab ou t fif te e n minu te s to ge t to the ba rr a c ks . While she wa s there, a

t 9:26 p.m., she called W h ite to ask him how S.B. was doing , but Whi te did not
answe r his phone. Cammisa g ot the beer and starte d back home , stopping only briefly on the way to take a photo of

the full moon with the ca m er a o n h er m o b i le phone. When she a rrived at her house and w as about t o unlock the side door, White opene d the door fr om the inside. He wa s ho ldi ngS.B ., and

he tol d Ca

mmi sa that S.B
. ha d f

a lle n o ff the c ou c h a

nd wa s n ot m ov ing . Ca

mmi sa too k S. B . f

ro m Whi te and

c arr ie d h e r i nto the liv ing ro om, wh e re sh e la id h e r o n th e fl oo r. Ca mmi sa noticed drie d blood around S.B.’ s nose and mouth and a “ver y , very larg e” bump on the side of her he a d. Cammi sa a sk e d Whit e if he ha d c a lle d 9- 1- 1, and he sa id h e ha d n ot. She tol d h im t o d o s o b u t h e in s te a d

w e n t i n to an o th e r

r o o m a n d r e tu r n e d w it h S. B
. ’ s c ar

s e a t. Ca mm is a to ld h im th ey could not take S.B . to the hospital and repeated t hat t hey had to call 9-1- 1, but Whi te told her that he could not find a

phone. She told him that there was a phone on the microwave in the kitchen, a nd he g ot the phone and c alled 9-1- 1. Meanw hile, Cammisa was rubbingS.B.’s stomach a nd talking to her. As she did so, S.B. started to move in “je rky ” motions that “wer en’t norma l b aby movements” a

nd started moaning in a

n abnorma l way . Cammisa noticed that S.B.’s blue ey es had turned a lmost completely white and that he r ey elids were half-c losed.3 A 9 -1 -1 o p erator re ceive d the ca ll from Whit e at a pproxi mately

9:45 p.m. and immediately

dispatched pa

rame dics to the scene . Parame dic J ohn Wolj evac h arr ived at Cammisa’s h o u s e t o f i n d S
. B
. o nt h e f

l o o r o f t h e h o m e i nf

r o n to f t h e c o u c h an d

C a m m i s a

an d W h i t e n e a r

b y. W ol jev ach as kedCa mm is a andW hi te w hat hadhap pen ed to S .B., andth ey bo th to ldhi m t hat S .B. ha d f a lle n o ff of the c ou c h an d hit he r he a d on a pla sti c ba by -w ipe s b ox. Wo lje va c h n oti c e d a sta in on Whit e’s shirt that appea red to be blood. He also noticed that S.B. w as not moving, he r ey es we re open, she had a “g azed” look, a nd she did not respond to noises in front of he r. S.B. a lso had a knot the size of

a g olf ba ll o n the sid e of

he r h e a d, sc ra

tc he s o n h e r c hin , b ru ise s o n h e r e y e s a nd a rm s, and drie d blood on her nose, lip, and left hand. U pon assessing S.B.’s c ondition, W oljevach c alled for a helicopter

to fly her to a hospital in Temple. He a lso contacted a dispatche r to reque st that police off icer s be sent to the sce ne based on his deter mination that S.B.’s injuries we re not c onsistent with a fa ll from the couc h.

I n th e amb ul anc e on

the wa y to m e e t th e he lic op te r, S.B . b e g an “ de c e re br a te posturing,” pushing he r ar ms awa y from her body in a wa

y that indicated a

brain injury . One of

her pupils also beg an dilating , indicating pressure i n t h e b rain, a nd the knot on her he ad g rewin siz e. Af te r t ra ns fe rr ingS.B . to the he lic op te r, Wolj e va c h r e tu rne d to Cammi sa ’s ho me to s pe a k w ith police off icer s. Upon retur

ning, he noticed that White had taken of f his shirt. Pol ice Offi cer C ass and ra Ful to n arr iv ed at th e sce ne, whe re s he int e rv ie we d Ca mmi sa and White. Whi te told Fulton that S.B. had fallen off the couc h and hit her he ad on a ba by -wipes box . I n a wr itten statement, he wr ote:4

[S .B.] was slee pin[ g ] i n her be d and woke up. Ipi cked her up a nd patted her

back to sleep. I put her down on the couch to g o g et a bottle, I hear d a thud, turned a

round and [S.B.] was on the g round. I ran ove r to her a nd she wa sn’t moving. I

picked he r up , s tart e d lo ok ingfo r my ph on e , h e ard [Ca mmi sa ’s ] ca

r, op e ne d [th e ] doo r, and

tol d her [S.B.] had just fell [ sic] off the couch and wasn’t movin[ g ]. She took her a nd I called 911. We do not discipline her due to her

ag e.
Cammisa told Fulton that S.B. was asle ep on the mattress on the floor of the master bedroom whe n sh e le ft the ho us e . Whil e F ult on wa s in the ho me , s he a lso no tic e d a ho le in t he liv ing -r oo m w a ll, which Cammisa said she ha d cause d by pun ch i ng the wall two we eks ea rlier dur ing a

n argument with her mot her. F ulton collected the shirt White had pre viously been w ear ing a

nd a shee t from the mattress on the floor

of the master

bedroom that a lso appea

red to have blood on it. By th e ti me t he h eli cop ter

tr ans po rt in g S .B. a rri vedat t he h os pi tal in Tem pl e, S .B. was in cr itical condition and in a coma. One of her doctors testified that there was massive swelling in h e r b ra in, he r b ra in w a s b le e din g , s he ha d se ve ra l sk ull fr a c tur e s, and

sh e ha d r e tin a l he mor

rh a g e s. Th e do c tor

a lso fo un d thre e pa

rt ia lly he a le d r ib f

ra c tur e s th a t he est imate d h a d o c c ur re d at le a st seven to ten da

y s ear lier. S
. B
. s p e n tm o r e t h an t w o m o n t h s i nt h e h o s p i t a l , w h e r e s h e u n d e r w e n tb r a i ns u r g e r

y. Whe n s he wa s r e le a se d fr om the ho sp ita l, he r fa the r and g ra

nd pa re nts too k h e r t o li ve wi th t he m in California. S.B. ha d two surg erie s on her skull afte r ar riving in California. At the time of trial, she
wa s le g a lly

bli nd and ha d lim ite d u se of

the le ft sid e of he r b od y . Sh e wa s a lso de ve lop me nta lly d e l aye d , b o t h p h ys i c a l l y an d m e n t a l l y. Acc ording to the testimony of Dr. David Har dy , a pediatric cr itical car e phy sician and one of the phy sicians who treated S .B. when she first arr ived at the hospital in Temple, the injurie s5

suffe red by

S.B. could not have been c aused by a fall from a couch. He fe lt so certain that a fall fr om the couc h could not have c aused h er injuries that it was “not eve n a close call” f or him to make. Rather, he testified that injuries l ike S .B.’ s wer e the kind he saw in children who w ere unrestra ined in h ig h- imp a c t c ar a c c ide nts in w hic h th e y we re thr ow n f

ro m th e c ar o r c hil dr e n w ho ha d b e e n h it in the head with a baseba ll bat or slammed ag ainst an object. Dr. Har dy also testifi ed t h at the inj ur ie s S.B
. su ff

e re d wo uld have c a

us e d imm e diate sy

mpt oms , su c h a s los s of

con sci ou sn e ss, unusual faci al ex p re s sions, a blank stare , and posturing . He testified that it would have bee n immediately

obvious and “prof

oundly noticeable ” that she w as hurt. He t es t i fied that the ob se rv a tio ns of

the pa ra me dic wh o a

rr ive d o n th e sc e ne we re c on sis te nt w ithhis e xpe c ta tio ns . Whit e wa s in dic te d f

or int e nti on a lly

or kn owin g ly

c a us ingse ri ou s b od ily

inj ur y to S.B . b y str iki ngor

hittin g he r w itha

de a dly we a po n o r t hr ow ing , p us hin g , or sla

mmi ng he r a g a ins t a dea dly wea pon. A jury found hi m g uilty as charg ed in the indictment. Whit e ele cted to have the trial cour t assess his punishment, and the trial c ourt sentenc ed him to life imprisonment. After
rec eiving his sentence , Whit e filed a motion for new t ri al , alleg ing that he was de nied ef fec tive assistance of counse l. After a hear ing, the trial court de nied the motion. This appeal f ollowed.
STA ND AR

D O F RE VI EW We reviewa trial c ourt’s denia l of a mot ion for new trial for an abuse of discre tion. Cha rle s v . S tat e , 146 S.W .3d 204, 208 (Tex. Crim. App. 2004)
. Acc ording ly , when analy zing the trial court’ s decision to deny a n ew t ri al base d on ineffe ctive assistanc e of c ounsel, we vie w the rele vant l eg al s tandar ds throug h the prism of an a buse-of -discre tion standard. Se e Ga rza v . S tat e , 261 S.W .3d 361, 364 (Tex. App.—Austin 2008, pet. ref’d). We do not substi tute our judg ment for6

that of the trial c ourt; rather , we d ec i de whe ther the tria l court’s de cision was ar bitrary or
unrea sonable. Charles , 1 46 S.W. 3d a t 208. We mus t vie w the e vid e nc e in the lig ht m os t f a vo ra ble to the trial court’ s ruling a nd presume tha

t all rea sonable fa ctual finding s that could have been ma de ag ainst the losing pa

rty wer e so made
. Id
. T h u s , a t ri al co u rt ab u s es i t s d i s cr et i o ni nd en y i n g a motion for new tria l only when no r easona b le view of the re cord c ould support the trial court’s r uling. Id
.
DI SCU SSIO N To prev ail on a cl aim of i neff ect iv e ass is tan ce of

cou ns el, a def

end ant mu st sh ow tha

t: (1 ) c ouns e l’ s p e rf

or manc e wa s d e fi c ie nt i n th a t it fe ll be low an o bje c tiv e sta

nd ard of re a so na ble ne ss, and (2) counsel’s de ficient pe rfor mance prejudice d the def ens e, re s ulting in an unr eliable or fundame ntally

unfair outcome of the pr ocee ding. See Strick land v. W ashington , 466 U.S. 668, 687- 88 (1 98 4) ; He rn an de

z v . S tat e , 7 2 6 S
. W
. 2 d 5 3 , 5 6 -5 7 (T ex . C ri m . Ap p . 1 9 8 6 ) ( ad o p t i n g Strickland two-prongtest). To establish def icient per formanc e as a

matter of la

w unde r t h e fi rst prong , a d e f e n d an t mu s t s h o w th a t n o r e a s o n a b le tr ia l s tr a te g y c o u ld ju s ti f y c o u n s e l’ s c o nduct. See Strickland , 4 66 U. S. at 68 9; An dr e ws v . S tat e , 159 S.W .3d 98, 102 (Tex. Crim. App. 2005). A de fe nd ant e sta

bl is hes pr e

jud ic e un de r t

he se c on d p ro ngif

he sh ow s th a t a

re a so na ble pr ob a bil ity exis ts that, but for the def icient perfo rm an ce , the outcome of the proc eedingwould have be en differ ent. See Strick

land , 4 66 U. S. at 69 4; Ex pa rteCas h , 178 S.W .3d 816, 818 (Tex. Crim. App. 2005). A rea sonable probability is a probability sufficie nt to undermine conf idence in the outcome. Strickland , 466 U.S. at 694.7 It i s t h e d e f

e n d an t ’ s b u r d e nt o p r o v e i n e f f e c t i v e a s s i s t an c e o f

c o u n s e l b y a preponde ranc e of the evidenc e. Tho mp so n v . S tat e , 9 S
. W
. 3 d 8 0 8 , 8 1 3 ( T e x . C r i m . A p p . 1 9 9 9 )
. In deter mining whe ther a

n attorney ’s perf

ormanc e was de ficient, we apply a strongpresumption that the attorne y ’s conduc t was within the wide ra ng e of r easona

ble profe ssional assista nce. Id
. We revie w the ef

fec tiveness of counsel in lig ht of the totality

of the re prese ntation and the cir cumstance s of ea ch ca se. Id
. I n most c ases, a n undevelope d rec ord on direc t appea l is insufficient to satisfy the require ments of Strickland be c a us e the re a so na

ble ne ss o f c ouns e l’ s d e c isi on s o ft e n invo lve s f a c ts
no t ap p ea ri n g i n the appe llate re cord. Ry lan de r v . S tat e , 101 S.W .3d 107, 110 (Tex. Crim. App. 20 03 ). With ou t e vid e nc e of the str a te g y and me tho ds inv olv e d c on c e rn ingc ouns e l’ s a c tio ns a t tr ia l, an appe llate cour

t should presume a sound tria l strateg y . See Thompson , 9 S.W .3d at 814. Def icient Performan ce

W h ite contends that the totality of the c ircumstance s of his trial counsel’s
r e p r e s e nt a t i o n e s ta bli shthat hi s tr ia l c ouns e l pr ov ide d in e ff e c tiv e a ssi sta

nc e of c ouns e l. T he “ tot a lity of the c ircumstance s” alleg ed by Whit e include e ight a lleg ations of def icient per formanc e. Specifica lly , Whit e asse rts that his trial counsel fa iled to : (1 ) seek out and interviewpotential witnesses for

the g uilt/i nnocenc e and punishment pha ses of tri al; (2) a dequate ly investigate a ph oto g ra phtake n b y

Cammi sa

that ma y have sh ow n Ca

mmi sa t o be ly ing ; ( 3) pr e se nt a va ila ble defe nse theor ie s during the g uilt/i nnocenc e phase of trial; (4) pur sue a dismissal of the c harg es bef ore trial; (5) make a prope r objec tion to the admission of volum inous medical re cords; (6) obtain a ruling
on his fo ur th m oti on in lim ine ; (7 ) a llo w a

pp e lla nt t o te sti fy

duri ng the g uil t/i nn oc e nc e ph a se of tr ia l; and (8) adher e to the motion in lim ine. We addre ss eac h alleg ation in turn.Be cause Whit e and his trial c ounsel share the sam e s urname , we will ca ll trial counsel 1 “Counsel” throug hout this opi nion to avoid confusion. 8 A. F ail ur e to Se e k OutP ot e nt ialWit ne sse s I n h is f ir st al le g a tio n of d e fi c ie nt p e rf or manc e , Wh ite c on te nd s th a t hi s tr ia l c ouns e l, Michae l Whi te (“ Counsel”), failed to make rea sonable e ffor ts to present the testimony of seve ral 1 witnesses who would have aide d Whit e’s defense during the g uilt/i nnocenc e and punishment pha ses of trial. At the h ea ring on Whit e’s motion for ne w trial, White presente d six witnesses who he alleg ed wer e available to te stify but w ere not c alled to do so during the trial. The w itnesses included Debbie H efne r, one of

Whit e’s f riends; J ane Anderson, W hite’s mother; Will amina Nolten, White’s former mother-in-la

w; Ray cinda B ux ton, one of White’s former co-w orker s; L ucy

Day , another

of Whit e’s f ormer c o-worke rs; and Nichola s Hefne r, anothe r of White’s frie nds. Whi te also pre sented
a seve nth witness—Serg ean t Br ady Miller, his supervisor—who ha d testified at the punishment phase of trial but not at the g uilt/i nnocenc e phase. None of the witnesses ha d any

knowledg e of the circ umstances of

the cr ime itself; rather , they all testified g ener ally

that they felt White was not capa ble of ha rming a child, and some of them fur ther testified tha

t they wer e so conf

ident in Whi te’s child-ca re a biliti es that they

would leave their own c hildren or g randc hildren in his car e. Tw o of the wi tne sse s, An de rs on and Mil le r, c omp la ine d o f C ouns e l’ s c on ta c t w ith them during Whit e’s tria l. Anderson testified that Counsel’s office called he r to tell her the date of the se nte nc inghe ari ngon ly tw o d ay s b e fo re the he ari ng . B e c a us e sh e liv e d in

Ne w Y or k a nd did
n o th av e t h e m o n ey

fo r a nai rp l an e ti ck et o n s u ch s h o rt n o t i ce , s h e wa s u n ab l e to at t en d t h e h ea ri n g. Ander son also testified t hat s he called C ounsel’s office a number of times trying to rea ch him but9

alway s had to le ave a messag e asking him to call her back. She testified that he never returne d her calls. Miller testified that he was never contac ted by Counsel during the trial. He explained that he le arn e d o f Wh ite ’s se nte nc inghe ari ngon ly be c a us e so me on e fr om the pr ob a tio n off ic e c a lle d to a sk him a question about Whit e’s military sta t u s i n t h e ev ent of a conviction. He de cided to attend Whit e ’s se nte nc inghe ari ngof his ow n a c c or d, and whe n he arriv e d, Whit e int ro du c e d h im t o Counsel. I t w as at that point that Counsel sug g ested Miller testify on Whit e’s behalf , which Miller ag ree d to do. Miller further testified that if Counsel had c ontacted him, he c ould have g iven Counsel the names of

a number of soldiers who would a lso have testified a s to W hite’s g ood char acte r. Co u n s e l c o mm e n te d o n th is is s u e a t th e s e n te n c in g h e ar in g an d th e hea ring on Whit e ’s mot ion

fo r n e w tri a l. A t th e se nte nc inghe ari ng , Co un se l st a te d:
Yo ur Ho no r, fo r p ur

po se s o f t

he re c or d, the PSI do es refl e c t so me —th e fa mil y relationship t hat [W hite] has with som e re latives in New Y ork. My pa ra le g a l and

Ihave ma de e xha

us tiv e e ff or ts t o c on ta c t r e la tiv e s. We a c tua lly had a sister on the phone. We ha d his mother on the phone, and some other membe rs of his fa mil y on the ph on e . T he y ’ve adv is ed me the y c ou ld n ot a ff

or d th e tr ip t o Texas from New

York; and [Whit e] h as re prese nted that to me on pre vious occa sions, at pretrials a

nd at the trial, that that would sort of be cost prohibitive for the m, a s w e ll. Mic ha e l H arr is h a s bee n some bo dy re fe rr e d to toda y . We re a c he d out to h im. Hi s n umbers ar en’t g ood any

more. He left us about thre e or f our phone numbe rs. He tol d me he wa s so on to de plo y to I ra q. An d thos e are pr e tty muc h th e e xha

us tiv e lis t that we’ ve tried to c ontact, ot h er de fense witnesses for purposes of the sentenc ing hear ing toda

y . At the hearing on the m otion for new tr ial, Counsel responded to se vera l questions about possible defe nse witnesses. Reg arding his c ontact with White’s mother, Counsel stated thatTo avoid conf usion betwee n Whit e’s trial attorney and the attorney who has re prese nted 2 hi m si nce he f

ile d a mot ion fo r n e w tri a l, w e wi ll c a ll h is c ur re nt atto rn e y

“ Ap pe llate Couns e l” throug hout the rest of the opinion. 10 he had notifie d Whit e’s mother on three differ ent occa sions that he repr esente d Whit e. He testified that she informe d him from the be g inning that she could not aff ord to trave l to Tex as. Reg arding other witnesse s, Counsel testified that he attempted to c ontact eve ry witness whose name Whit e g ave him and that h e as k ed Whit e for additional witnesses, but Whit e told him he had no additional witnesses at that ti me. He testified that the onl y names W hite g ave him as possible witnesse s in the g uilt/i nnocenc e phase of trial wer e those of Michae l H arr is a nd his wife, who ha d been a t Cammisa’s home ea rlier in the da

y on the day

of the c rime. C o u n s el stated that he contac ted the husband on
sever al occ asions and that the c ouple eve ntually ended up pr oviding state ments. Counsel testified that parts of the couple’ s statements wer e helpful to Whit e and pa rts wer e “pr etty

bad.” T he neg ative
a sp e c ts o f t

he ir state me nts we re hig hli g hte d whe n the pr os e c uto r use d por tio ns of the state me nts to impeach Whi te at the puni shment hear ing, a nd Whit e’s ne w attorne y

(“A ppellate Counsel”) later 2 called the portions “damning extracts” at the hear ing on the m otion for ne w trial. Thus, the re cord shows that the statements would not nec essar ily have be en bene ficial to White. Fur ther, the r ecor d is otherwis e s i l en t as t o the sig nificanc e and r eleva nce of the couple’ s statements. The r ecor d sug g ests that the couple w as at Cammisa’s home earlier in the day
on the da y of the c ri me , b ut t

he re is no thi ng in the re c or d to su g g e st t hat e ith e r o f t

he m w a s a

wi tne ss to the circ umstances of

the cr ime itself. The portions of their statements used to impeac h Whit e at his punishment hear ing addre ssed contac t the couple ha d with Whi te at some point afte r the da y of the cr ime. Specifica lly , the portions of the stateme nts use d for impea chment purpose s focuse d onReg ar d i n g t h e Har rises’ live testimony , we have alr eady addre ssed Counsel’s testimony 3 at t he punis h me n t h e ar in g th a t h e tr ie d to c o n ta c t M ic h a e l H ar r is b u t t h a t H ar r is ’ s “ n u mb e rs [weren’ t] g ood any

m o re ” an d t hat Har

ris told him “he was soon to deploy to I raq.” Be cause the rec ord is silent a s to w hether Har ris’s wife was available to testify , and if so, Counsel’s re asons for not calling her a s a witness, we do not addre ss the issue. See Tho mp so n v . S tat e , 9 S.W .3d 808, 814 (Tex. Crim. App. 1999). 11 way s in which the st o ry

Whit e told the couple a

bout what happe ned on the nig ht of S.B.’s injury differ ed fr om t h e story

he told police. Given the lack of evidenc e in the re cord e stablishing the
re le va nc e of the Ha

rr ise s’ state me nts , an d g ive n the po te nti a lly ha rm fu l nat ur e of po rt ion s o f t

he ir state me nts , w e c on c lud e that Whit e ha s fa ile d to re bu t the pr e su mpt ion that Co un se l’ s d e c isi on

to not offer their statements wa s a re asonable one. See Thompson , 9 S.W .3d at 814. 3 Reg ardingMiller, Counsel testified that he spoke w ith Mil ler two times. He state d that Miller wa s a “[ v ] er y nice g entleman, but [had] nothi ng rele vant re g ard[ing] . . . g uilt or innocenc e.” Counsel a lso testified that he conta cted a fema le whom he believed to be Whit e’s sister. When the woman answe red the phone, she stated that she did not consider herse l f t o b e W h ite’s sis te r. Couns e l e xpla ine d th a t Whi te tol d h im h e ha d a “ ve ry str a ine d r e la tio ns hip wi th h is f a mil y members a

nd didn’t know if they

would be of a

ny benef it.” Counsel t est ified that whe n he contac ted White’s family members, “ what [W hite] had told [ him] rangtrue a s [he] spoke to them on the phone.” Although White pre sented seve ral witnesse s at the hea ring on his moti on for ne w trial who wer e not prese nted during his tria l, the rec ord provides plausible explanations as to Counsel’s
reas o n s fo r n o t calling the witnesses duringtrial, particula rly consideringthat we must view Counsel’s conduct f

rom his perspec tive at the time the conduct occur red and not with the bene fit of12

hindsight. Se e Ro be rts on v . S tat e , 1 8 7 S
. W
. 3 d 4 7 5 , 4 8 2 (T ex . C ri m . Ap p . 2 0 0 6 ) ( qu o t i n g Strickland , 46 6 U. S. a t 68 9) (“ A fa ir a sse ssm e nt o f atto rn e y pe rf or manc e re qu ir e s th a t e ve ry e ff or t be ma de to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of counsel’s c halleng ed conduct, a nd to evaluate the conduct from counsel’s perspe ctive at the time.” ). Counsel testified that he conta cted al l o f t h e witnesses provided to him, including some of White’s re latives, and the wi t n es s es h e s p o k e w i t h e i t h e r c o u l d n o to r w o u l d

n o tat t en d

t h e h ea ri n gs . Fu rt h er , al t h o u gh Ander s o n te s ti f ie d that she wa s contac ted only day s befor e the se ntencinghear ing a nd Miller testified that he wa s n ot co nta c te d at al l, the tr ia l judg e , as the so le jud g e of the c re dib ili ty of the wi tne sse s, was fr ee to believe Counsel’s testimony and disreg ard the testimony of Ande rson and Miller. Le wis
v . S tat e , 9 11 S.W. 2d

1, 7 ( Te x. Cr im. Ap p. 19 95 ); Ac os ta v . S tat e , 1 6 0 S.W.3d 204, 2 1 0 ( T e x. App.—For

t Worth 2005, no pet.). Accor dingly , we r ejec t Whi te’s alleg ation.
B. F ail ur e to Inv e st iga te P hot o Ta ke n by C am m isa Whit e ’s se c on d a lle g a tio n o f d e fi c ie nt p e rf or manc e is that Co unsel fai le d to investigate the conte nts of a photo taken by Cammisa. During the trial, Cammisa testified that af ter leavingWhit e’s ba

rra cks on the nig ht of the cr ime, she took a photo of the f ull moon usi ng the
c a me ra on he r mob ile ph on e . Duri ng Mil le r’ s te sti mony a t the he ari ng on the mot ion fo r ne w tri a l, Whit e introduced a photo taken by Miller the day befor e the hear ing that dep i ct ed a “ 7-Eleve n” convenie nce- store sig n, overhe ad power lines, and a power -line pole in a location that alleg ed wa s less than a mile f

rom Cammisa’s home. Appellate Counsel a lleg ed that the orig inal photo taken by Cammisa also contained a 7-Eleve n sign a

n d p o we r pole, neither

of which c ould be found ne ar Whit e ’s ba

rr a c ks
. I n his br ie f, Whit e c on te nd s tha t the ph oto take n b y Mil le r s ug g e sts that Cammi saWhit e also fa ils to a dd re ss t he fa c t th a t th e ph oto , r e g ard le ss o f w he re it w a s ta ke n, sti ll 4 e s t a b l i s h e s t h a t C a m m i s a w a s n o t a t h o m e p r i o r t o t h e t i m e t h a t S
. B
. b e g an s h o w i n g s i g n s o f i n j u r y.
13 lie d a bo ut wh e re sh e wa s w he n s he too k th e ph oto . A s f ur the r s up po rt

fo r h is c on te nti on , Wh ite a lso points out t hat while he w as beinginterrog ated by an investig ator fo r t he district attorne y ’s offic e afte r he took a poly g raph test, the investigator told him t hat the photo of the moon c ould not have been taken at F ort Hood. Consequently , Whit e alleg es that Counsel’s fa ilure to investigate the contents of the photo a s a possible ave nue for attacking Cammisa’s cre dibilit y constituted deficie nt perf ormanc e. At the hea

ring on the motion for new tr ial, the only question asked of

Counsel
re g ard inghis re a so nin g fo r n ot f ur the r i nv e sti g a tin g the ph oto wa s w hy he did no t in ve stigate in response to the district attorney investigator’s comment to White that the photo could not have be en taken at Fort Hood. Counsel stated: “ I ’m assuming that [t he investig ator] do es n ’t k n ow that [the photo could not have be en take n at For t Hood]
. T h at’s a common technique that’ s used, whethe r it’s involving a polyg raph or not.” Considering the lack of evidenc e in the rec ord, we conclude t h at C o u nsel’s pe rf or manc e wa s no t de fi c ie nt. To be g in wi th, the or ig ina l ph oto g ra ph take n by Cammi sa

is n ot i n the re cord. Thus, it is unclea r whe ther the photo taken by Miller the day befor e the hear ing on the motion for new tria l did or did not res em b l e t h e original photo. In addition, the only testimony Cammisa of

fer ed reg arding the photo w as that she took it “as [she] was leaving[W hite’s] barra cks room.” She did not specif y an exact location. Thus, it i s not clea r from the re cord that the location
o f t h e p h o t o h o l d s an y s i g n i f i c an c e r e g ar d i n g C a m m i s a ’ s c r e d i b i l i t y. F u rt h e r , W h i t e d i d no t c a ll 414

the district attorney ’s investig ator to t he st and to testify as t o his statement t hat t he photo could not have be e n ta

ke n at F or

t H oo d. Thus , the re c or d do e s no t pr ov ide any e vid e nc e to su pp or t th e tr uth
or re asoning of the investig ator’s c omment. Accor dingly , Whit e’s a lleg ation is not firmly founded in the rec ord. See Thompson , 9 S.W .3d at 814.

I n addition to the absenc e of e vidence i n t h e re co rd , we a lso note that Counsel’s explanation—that he assumed that the investigator’ s comment was part of a common interrog ation technique—is a

plausible basis for his dec ision not t o inquire into the matter further. Be cause the
rec ord does not affirmatively demonstrate the alleg ed def icient per formanc e, and be cause Counsel p rovided a

rea sonable e x planation for his de cision not to investigate the photo further , we r ejec t Whit e’s a lleg ation.
C. F ailure to P rese nt Availabl e De fense Th eorie s I n h is thir d a lle g a tio n o f de fi c ie nt pe rf or manc e , Wh ite a sse rt s th a t Co un se l f a ile d to
e xplor e Cammi sa ’s his tor y of pu nc hin g ho le s in wal ls an d fa ile d to explo re se ve ra l ot he r c omm e nts made by the district atto rn ey ’s investigator about Cammisa’s cr edibility during the investig ator’s interrog ation of White. Specifically , Whit e conte nds that Counsel failed to: (1) c ross-examine Cammisa about her history of punchingholes i n walls; (2) pre sent the testimony of Cammisa’s mother re g ardingCammisa’s history of punchingholes in walls; (3) present to the j ury a comment made by the district attorney ’s investig ator that if White did no t g ive a state ment saying that Cammisa hurt S.B., White would be “thrown unde r the bus”; (4) present to the jury a comment made by the district attorney ’s investig ator that he had stateme nts from C am m i s a’ s neig hbors that Cammisa’s car

never left the house that nigh t ; an d (5 ) present to the jury a comment made by

the15

distr i ct attorne y ’s investig ator that a friend of Cammisa’s who Cammisa testified she saw at the barr acks the night of

the cr ime had told police that he did not see her that night. We first note that the re cord is silent as to Counsel’s re as o n ing f or not ca lling Ca mm is a ’ s mo th e r a s a w it n e s s . T h u s , Wh it e h a s f

a il e d to r e b u t th e p r e s u mp ti o n th a t Counsel’ s decision wa s a re asonable one. See id
. R ega rding Counsel’s rea soning f or not cross- examining Cammisa about her history of punchingholes in walls, Counsel expl ained that h e “did c ross-examine [C ammisa] on a number of thing s, including the h o l e i n t he wa ll and the injuries of the c hild and
so me oth e r t

hin g s. ” Couns e l f

ur the r e xpla ine d h is c ro ss- e xami natio n o f C a mmi sa a s f oll ow s:
Th e re [ar e ] som e [pos sib le c re dib ili ty iss ue s] tha t I e xplor e d a

nd we nt t hr ou g h w ith [C ammisa]. There is some trial strateg y beca use y ou have to be very

car eful whe n y ou’re cross-e x amining the mother of
. . . a sever ely disabled child. So I crosse d her on the fa c t th a t th e re was in the me dic a l r e c or ds a dd iti on a l in jur ie s, ri b f

ra c tur e s, br ui s i n g s an d e v e n i n

j u r i e s t h a t o c c u r

r e d t h a t d ay t o [S
. B
. ’ s ] e y e w i t h a toy , s ome other injuries that a s a mother that she knew or should have known of

those exist ing inj ur ie s, tho se pr e -e xistin g inj ur ie s, and that in fa c t sh e mig ht be re sp on sib le fo r t ho se injuries. And I

went into those are as in front of the jury
. The re cord shows that during the trial, Counsel questioned Cammisa about a hole that was punc hed in the wall approximately two wee ks befor e the c rime occ urre d. Cammisa admitted that she punched the hole in the wall during an argument with he r mother. Counse l al s o as ked Cammi sa a bo ut t he ot her inj ur ie s to S.B . th a t do c tor s d isc ov e re d— sp e c if ic a lly , S. B .’ s p art ia lly heale d rib fra cture s. Counsel asked Cammisa to c onfirm that the doctor s’ estimate of the time S.B.’s ri b f ra c tur e s mo st l ike ly

oc c ur re d w a s a bo ut t he same tim e that Camm isa punc he d a h ole in t he wa ll, and Cammisa conf

irmed that it would have be en about the sa me time.16 A lt h o u g h Co u n s e l d id n o t qu e s ti o n Ca mm is a a bout a hi st or

y of punc hin g ho le s in walls, he que stioned her a bout the hole in the wall that was most rele vant to the ca se and that raised implications about her temper and the possibili ty that she could have harme d S.B. on the day of the crime. Counsel’s ex planation that he felt he needed to be care ful when c ross-examining the mother of a se vere ly

disabled child provides a rea sonable ba sis f

o r l i m i t i n g his cross-e x amination of Cammisa to the most relevant issues.

Re g ard ingthe c omm e nts ma de by the dis tr ic t a tto rn e y ’s inv e sti g a tor that se e me d to cast suspicion on Cammisa, Counsel testified that he did not prese nt the testimony o f t h e dis trict attorney ’s investig ator be cause he did not think the i nvestig ator “spoke for the depar tment.” When questioned as to whether the i nvestig ator’s comments would have been a dmissibl e at tria l, Counsel stated:
I f [they ] had been a dmissibl e, I think that it would have also bee n admissible that the re [ar e ] a d oze n oth e r a lte rn a te the or ie s a s to ho w [Wh ite ] co mmi tte d th is c ri me as well. So, no, Iwould not have e x plored that a rea . Iwould not call [the investigator] or any one else in the D.A.’s office to g o into all the possible theories a s to why [W hite] m ight be g uilty

or why he mig ht not be g uilty . No. Reg ardingthe re asons for the investigator’s comments, Counsel furthe r stated: That mig ht have be en [the investigator’s] personal opinion or t hat might have bee n [hi s] m odus opera

ndi for interr og ating someone or ta lking to someone afte r a po lyg ra ph , o r a n a lte rn a te the or

y . I ’m no t g oin g to g o in to t hat are a . A nd

that w ou ld be bad tr ial strateg y to sit there and have them g o further into all the possible theories o f w h y [ W h i t e ] m i g h tb e g u i l t y.17

When asked a

bout the same iss ue by the prosecutor, C ounsel stated that “the rule is that y ou don’t ask questions y ou don’t know the a nswer to, and y ou cer

tainly don’t ca ll witnesses to testify that y ou don’t know exactly

what they

are g oing to sa

y .” Counsel’s explanation pr ovides a rea sonable ba sis for his decision not to present the comments of the district attorne y ’s i n v es t i gator to t he jury . Counsel did not know whether the investigator’s comments were an interrog ation tactic, a theory about the cr ime, or something else. Raising the issue could have opened the door to te stimony that could have been ha rmful to Whit e, and Counsel was n o t i n ef fe cti ve for

decidingnot to elicit testim ony that could have been mor e harmful than he lpful to his client. Se e Da mi an v . S tat e , 881 S.W .2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). I n addition, Whit e did not prese nt the testimony of the investig ator at the hea ring on the m otion for new trial and did not otherw ise prese nt evidence supporting a ny of the invest i gat o r’ s co mments. Thus, he failed to de velop the re cord suf ficiently to establish deficie nt perf ormanc e. See Thompson , 9 S.W .3d at 814.
D. F ailure to P ursue P re- trial Dism issal I n h is f o u rth a ll e g a ti o n , Wh it e c o n te n d s th a t C o u n s e l f a il e d to s e e k a pre- trial dismis s al o f the c ase ba sed on evide nce that Whi te’s polyg raph e x amination had bee n “rig g ed.” Specifica lly , W h i t e re fe rs t o a comment made by the poly g raph e x aminer to White after the poly g raph e x amination to the eff ect that Whit e could not have know n if Cammisa was pre sent when S.B. re ceive d her injury

if Whit e had not se en the injury inflicted or be en told by Cammisa that sheTh e re c or d s ho ws tha t Whi te ’s de pic tio n of th e po lyg ra phe xami ne r’ s c omm e nt i s 5 inacc urate
. The videotape of Whit e’s interrog ation shows that the polyg raph e x aminer’ s comment to Whi te was ma de in response to Whit e’s statement that he did not see Cammisa hurt S.B . but that he “kne w” that she must have done so. The examiner re sponded that White could not have known that Cammisa harmed S.B . if he had not seen the injury inflicted or been told by Cammisa that she did so. No ref

ere nce w as made to Whi te’s knowledg e of Cammisa’s pr esenc e at the house
. 18 harm ed S .B. At the hea ring on the mo t i o n fo r n ew trial, Appellate Counsel asked Counsel how 5 Whit e could have answe red the question “Was [C ammisa] pre sent when the child s u s t ai n ed her injuries? ” without being dece ptive if Whit e did not know when the injuries occur red. A fter a

series of sustain ed o b

j ections, Counsel was ne ver a ble to answe r the que stion. W hen questioned a bout whether he told the prosec utor that he thought the poly g raph w as rig g ed, Counsel answe red, “ No.” Although Counsel state d that he did not think the pol y g raph was fair, Appellate Counsel never asked Counsel if he believe d the pol y g raph was i ntentionally rig g ed, or if he did so believe, w hy he did not inform the prose cutor of the situation or pursue a pre- trial dismiss al i n the ca se. B eca use the re cord is s i l en t as t o Counsel’s thoughts a nd rea soning on the matter, White has fa iled to rebut the presumption that Counsel’s decision wa s rea sonable. See Thompson , 9 S.W .3d at 814. We theref ore reje ct White’s alleg ation.
E. F ail ur e to M ake P r ope r Obj e c ti on t o M e dic al R e c or ds Whit e ’s fi ft

h a lle g a tio n o f d e fi c ie nt p e rf or manc e is t

hat Co un se l f

a ile d to ob

je c t to the admission of 2,215 pag es of medic al re cords on the ba sis that the volume of the rec ords made them substantially

more pre judicial than probative under Rule 403 of the rule s of evidenc e. See T e x. R. Evid. 403. When the prosec ution moved to a dmit the medical rec ords at trial, Counsel objec ted to the rec ords base d on alleg ations that the records contained hearsay and viol ated the Confrontation19

Clause of the U.S. Constitution. Counsel a sked for a runningobjection on those base s, which the trial court de nied. Counsel did not object based on Rule 403 of the rules of

evidenc e. Although White ar g ues that Counsel should have ob j ec t ed b ased on Rule 403, the
rec ord does not provide evidenc e of Counsel’s r easoningfor not o b j ec t i n g o n that basis. At the hear ing on the motion for new tria l, Appellate Counsel made comments about the volume of the
rec ords but did not question Couns el about the issue. Be cause the rec ord is silent as to Counsel’s
rea soning, White’s complaint as to this issue is not firmly founded in t h e record. See Thompson , 9 S.W .3d at 814.

F . F ail ur e to Obt ain a R uling on F our th M ot ion in Li m ine I n h is s ixth all e g a tio n of de fi c ie nt pe rf or manc e , White a sse rt s tha t Co un se l f a ile d to ob ta in a ru lin g on his fo ur th mot ion in limi ne , whi c h re qu e ste d tha t the pr os e c uti on be re qu ir e d to fi rs t se e k p e rm iss ion

of the tr ia l c ourt

ou tsi de the pr e se nc e of the jur y be fo re qu e sti on ingany

wi tne ss
re gar d i n g m at t er s ab o u twh i ch t h e wi t n es s d i d n o t h av e p er s o n al kn o wl ed ge. At a p re t ri al h ea ri n g, the trial cour

t gr anted Counsel’s f

irst three motions in limi ne bef ore turn i n g t o t h e fourth motion. I n addre ss ing the fourth motion, the trial judg e stated that he believe d that matters not within the persona l know ledg e of the witnesses would best be ha ndled by objections during the trial and that he would be a lert for

any such objec tions Couns el might make . The trial judg e went on to conclude that he was “not g oing to g rant that ahea d of trial.” Thus, the trial cour t denied Counsel’s motion. Acc ording ly , Counsel did not fail to obtain a ruling on the motion.20 Even if Counsel had not obtaine d a ruling , the re cord is silent as to a ny rea soning f

or
no t do ingso . T hu s, Whit e ha s f a ile d to rebu t the pr e sumpt ion that Co un se l’ s d e c isi on

wa s a
rea sonable one
. Se e id
. G . F a il ur e t o A ll o w A pp e ll a ntt o Te s t if y Whit e’s se venth alleg ati o n o f d e f ic ie nt p e r f o r ma n c e is th a t C o u n s e l “ r e fused” to allow Whit e to testify

during the g uilt/i nnocenc e phase of trial. White attache d an aff idavit to his motion for ne w trial in which he stated t hat he “aske d, during the Guilt/I nnocenc e phase of the trial, to be allowed to testify

and was told ( by [C ounsel]) ‘ No, y our [juvenile] rec ord will be used a g ainst y ou’ . . . .” When questioned a bout the issue at the hear ing on the motion for new tria l, Counsel stated that he talked to White about White’s testimony “many times,” and that the decision for White not to testify at the g uilt/i nnocenc e phase was White’s “ultimate dec ision” but was base d on Counsel’s advice that Whit e not testify
.

Although both Counsel’s a nd Whit e’s state ment s s u p p o rt a de termination that Couns e l a dv ise d Wh ite no t to te sti fy , th e re is no e vid e nc e in t he re c or d th a t Co un se l “ re fu se d” to allow White to testi fy , and W hite did in fact testify during the punishment phase de spite Counsel’s advice ag ainst it. Thus, W hite fails to show how Counsel ref used to allow him to testify at the gu i l t/ i n n o ce n ce p h as e o f t ri al b u t d i d n o t re fu s e t o d o s o d u ri n g t h e p u n i s h m en t p h as e ev en t h o u gh Counsel advised ag ainst him testifying in both phases. Fur ther, Counsel wa s not questioned at the hear ing on the motion for new tria l as to his rea soning for advising W hite not to testify . Thus, the
rec ord re veals only

Whit e’s state ment that Counsel’s rea soning w as base d on the potential dang er of White’s juvenile rec ord beingused ag ainst him. Given the rea sonablene ss of Counsel’s fe ar that21

Whit e’s juvenile r ecor d may harm him more than his testimony would help him, and g iven the strong presumption of sound trial strateg y we must apply to ineffe ctive assistanc e cla ims, we reje ct White’s alleg ation. Se e id
. H. F ail ur e to Adh e r e to M ot ion in Li m ine I n his eig hth alleg ation of def icient per formanc e, W hite contends that Couns el was defic ient in purposely

eliciting e vidence of extraneous off enses a nd thus violating hi s own motion in l im ine , w hic h e xclu de d a ny re fe re nc e s to e xtra

ne ou s o ff e ns e s w ith ou t th e tr ia l c ourt fi rs t conductinga hea

ring outside the pre sence of the jury . The spec ific evide nce of extraneous offe nses th at C ou ns el a ll egedl y

eli cit ed w as t est im on y

abo ut th e part ial ly heal ed rib fract ures su ffered by S .B.
a pp ro xima te ly

tw o w e e ks pr ior

to t he c ri me . At the he ari ng on the mot ion fo r n e w tri a l, A pp e llate Couns e l a sk e d Couns e l wh y he a llo we d the pr os e c uti on to e lic it te sti mony re g ard ingth e par ti a lly heale d rib fra cture s wi t h o u t first objecting and askingthe trial cour t to hold a hear ing outside the prese nce of

the jury . I n response , Counsel stated:
Ia c tu a ll y b r o u g h t o u t t

h e te s ti mo n y

r e g ar d in g th e p r e v io u s in ju r ie s to the child. I thi nk [the do c tor ] tou c he d o n it duri ng dir e c t wi th t

he State , b ut I

a c tua lly we nt i nto it because I thought that was trial strateg y to show that those injuries pre- exis ted the d ay t h at [W hite] was acc used of this offe nse and c ould possibly have be en [C ammisa].
I n the trial exchang e re fer ence d by Counsel, h e aske d Cammisa severa l questions about the par

tially heale d ri b fr actur es discover ed by doctors who tre ated S.B . Cammisa testified that she wa s awa

re that the doctors discove red the rib fra cture s but that she had ne ver notice d injuries like that on S.B. Cammisa ac knowledg ed that the time that the doctors estimated the rib fra cture s22

lik e ly oc c ur re d— tw o w e e ks pr ior

to t he c ri me —w a s the same tim e tha t sh e ha d p un c he d a

ho le in the wall duringan ar g ument with her mother
. Counsel then went on to question Cammisa about
sever al bruises found on S.B. and whether Cammisa knew the c ause of the bruises. He also elicited t e s t i m o n y f

r o m C a m m i s a

i nw h i c h s h e s t a t e d

t h a ts h e n e v e r

s aw W h i t e i n

j u r e S
. B
. i nan y w a y. Th e q u e s ti on s C ou ns el p os ed t o C amm is a abo ut th e pre ex is ti ng in ju ri es t o S .B. sug g ested that the injuries c ould have been cause d by Cammisa, not White. Thus, we disag ree that evidenc e of the injuries constituted evidenc e of “extraneous offe nses” committed by Whit e. Fur ther, Couns e l’ s d e c isi on

to b ri ngup the iss ue of the pr e vio us inj ur ie s w a s r e a so na ble g ive n th e c on str a int s wi thi n w hic h h e ha d to de ve lop his tr ia l strate g y . Sp e c if ic a lly , Co un se l’ s st

ra te g y ha d to inc or

po rate Whit e’s state ment to police that Cammisa was not pr esent prior to S.B
. showing signs of injury and the doctor’ s testimony

that S.B.’s injury

wou l d b e i mmediately

obvious after

it was inflicted and could not be ca

used by a fa ll from a couc h. At t h e he ar i n g o nt h e m o t i o nfo r n ew t ri al , C o u n s el ex p l ai n edt h at i twa s h i s s t ra t egy throug hout trial to raise a rea sonable doubt that White committed the crime and that he attempted to do so by offe ring evidenc e sug g esting that Cammisa c ould ha ve committed the crime. He testified that g iven White’s unwaver ing position that Cammisa was not pre sen t for a substantial pe riod of time before S.B. showed sig ns of injury , he had to do “ the best [he] could, even ag ainst the medica l
e xpe rt s th a t te sti fi e d, to s ay tha t th is m ig ht hav e hap pe ne d e arl ie r i n th e da y or ri g ht p ri or

to [Ca mmi sa ] le a vin g the ho me . . . . ” Co ns id eri ng th e e vid e nc e Cou ns e l ha d to wo rk

wi th, it i s
rea son a b le th a t h e w o u ld

c h o o s e to c r o s s - e xa mi n e Ca mm is a a b o u t i n ju r ie s to S. B
. th a t o c curr edWhit e also c ites to Ro be rts on v . S tat e , 187 S.W .3d 475 (Tex. Crim. App. 2006), in support 6 of his argument that Counsel provided ineffec tive assistance by questioning Cammis a about S.B .’s partially heale d rib fra cture s. Howeve r, Robertson is disti ng uishable fr om this case. In Robertson , trial counsel elicited testimony from the defe ndant reg arding the defe ndant’s pre vious convictions and inca rce rations in an ef

fort to establish that the def endant wa s truthful. 187 S.W .3d at 480-81. Her e, Counsel elicited testimony from anothe r witness about pre vious injuries to the victim i n an e ff or t to e sta bli sh that the oth e r wi tne ss, no t the de fe nd ant, wa s re sp on sib le fo r t he inj ur ie s. B e c a

us e Robertson is substantially differ ent from this ca se, we are not persuade d by Whit e’s a

rg ument. 23 a pp ro xima te ly

tw o we e ks pr ior to the c ri me and a t abo ut t he same tim e that Cammi sa punc he d a

ho le in t he wa ll o f h e r h ome . We the re fo re dis a g re e that Co un se l’ s c on du c t w a s d e fi c ie nt. 6
I. Conclusion Regar din g Deficient P erform ance Be cause we re

j ec t Whit e’s a lleg ations, we c onclude that White has fa iled to prove by a pre pondera

nce of evidenc e that his counsel’ s perf ormanc e wa s deficie nt. See Strick land , 466 U. S. at 68 9; An dr e ws , 159 S.W .3d at 102.
Prejudice Ev e n if

we ha d de te rm ine d tha t Coun se l’ s per fo rm anc e wa s def ic ie nt, Whit e fa ils to prove the second e lement of his claim: that Counsel’s def icient per formanc e pre

judiced the de fense , resulting in an unre liable or funda mentally unfair outc ome of the proce eding
. Strickland , 4 66 U. S.
a t 68 7-8 8. As prev io us ly state d, fo r Wh ite to e sta

bli shthe se c on d e le me nt o f h is c la im, he mus t show t h at there is a rea sonable proba bility that, but for his counsel’ s deficie nt perfor mance , the
o u t co me of the pr ocee ding w ould have be en diffe rent. Se e id
. a t 6 9 4
. Wh it e f a il s to show that
a bs e nt a ny e rr or s b y Couns e l, the re is a re a so na ble pr ob a bil ity that th e jur

y wo uld have fo un d h im not guilty of the c rime.24 I n the statement White g ave to police office rs who ar rived on the sce ne, he c laimed that when S.B . woke up f

rom a na p, he picked her up and patted her until she fell back to sleep. He stated that he the n laid her dow n on the couc h and we nt to ge t a bottle. At that point, he hear d a thud, turned ar ound, and sawS.B. on the g round. She was not moving. He picked her up and beg an looking f or a p h o n e when he hear d Cammisa arrive at the home. He told Cammi sa that S.B. ha d fallen of f the c ouch and that she was not moving
. Whit e did not chang e his ve rsion of eve nts at any time before or duringtrial.

The pa rame dic who first a

rrived at the scene testified t hat upon his arriva l, S.B. was not moving, her

ey es we re ope n, she had a “g azed” look, and she did not respond to noises in front of her . He testified that S.B. also had a knot the siz e of a golf ball on the s ide of her hea d, scratches on her c hin, bruises on her e y es and a rms, and dried blood on her nose , lip, and left hand. H e fur ther testified that S.B.’s c onditio n worsene d quickly once she was in the ambulance on the way to the helicopter . The phy sician who tre ated S.B . when S.B . arr ived at the hospital te stified that the injuries S.B
. su ff e re d wo uld have c a

us e d imm e diate sy

mpt oms su c h that it wo uld hav e been immed ia te ly obvious and “prof

oundly noticeable ” that she w as hurt. The doctor te s tified that the obser vations of the pa ra me dic wh o a

rr ive d o n th e sc e ne we re c on sis te nt w ithhis e xpe c ta tio ns . Given the e vidence of t he severity of S .B.’ s injuries and the imm ediac y with which the injuries would have become appar ent, and g iven both Cammisa’s and White ’s unvary ing positions t hat Cammisa w as not pr esent at the time S.B. starte d showing signs of injury , we c onclude that Whit e has not shown a rea sonable proba

bility that, bu t fo r his alleg ations of def icient perf ormanc e, the outcome of the proce eding would have be en diffe rent. Se e id . Even if Counsel had done all the thing s that Whi te allege s he should have done—including calling additional char acte rWe assume that White’s testimony at trial would have been the same a s his testim ony at 7 the sentenc ing he aring , in which he maintaine d the s ame story as he ha d provided to police: that he was a lone with S.B. whe n she fe ll off the couc h and beg an showing signs of injury
. 25 witnesses to testify

that they knew W hite to be good with children; fur ther investig ating Cammisa’s
cre dibilit y

and his tory of vi olence ; raising a pre -trial alleg ation that Whit e’s polyg raph w as rig g ed; objecting to the am o u n t o f m ed i cal r ecor ds admitted at trial; and per mitti ng Whit e to testify

at trial —none of his conduc t would have led to evidence that contra dicted or othe rwise a ffe cted the 7 exis ting e vidence that by Whit e’s own acc ount, he was the only person with S.B. w hen she be g an sh ow ingsig ns of

a n in jur y that, a c c or din g to e xpe rt me dic a l te stimo ny , wo uld be imm e diate ly
no tic e a ble up on inf lic tio n a nd c ou ld n ot be c a

us e d by a fa ll fr om a co uc h. Th a t e vid e nc e a lon e c ou ld lead a rea sonable jury

to find Whi te g uilty . Acc ording ly , even if Whit e had proven that Counsel’s perf ormanc e was defic ient, he has failed to prove that he wa s prejudice d by Counsel’s actions. See id
. CO NC LU SION

Be cause Whit e has f

ailed to pr ove by a preponde ranc e of the evidenc e that his trial counsel provide d ineffe ctive assistanc e, we aff irm the trial cour

t’s judgme nt.

__________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med Filed: F ebrua

ry 26, 2010 Do No t Pu

bli sh