Joey Martinez v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION
Nos. 04-07-00493-CR & 04-07-00494-CR
Joey MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court Nos. 05-03-00067-CRF & 05-03-00068-CRA
Honorable Donna S. Rayes, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: February 13, 2008

 

AFFIRMED

Joey Martinez appeals his convictions of sexual assault of a child and indecency with a child. In two points of error, Martinez contends his constitutional rights were violated because his trial counsel failed to object to improper expert opinion testimony resulting in ineffective assistance of counsel. We affirm the judgments of the trial court.

 

Background

This case involves Martinez's conduct with his fourteen-year-old niece. The complainant, E.S., lived with her mother, Mary. Mary was a home hospice nurse and typically worked nights. Mary's sister, Connie, and Martinez were married and lived nearby. Although Mary's nephew, her son, and his two small children were living with Mary, Connie and Martinez stayed with Mary for approximately three days while the Martinez's house had no electricity. One evening during the stay, Connie and another aunt, Angelica, were watching the children while Mary was running errands and preparing for work. Connie and Angelica left the children with Martinez while they went to get food. When Mary returned from her errands, Martinez was alone in the house with the children, including E.S. Mary dropped off some clothes and left for work.

According to E.S., Martinez assaulted her in her bedroom while the adults were gone. Martinez allegedly fondled and sucked her breasts then pulled down her pants and penetrated her vagina with either his fingers or "something else." The day after the assault, E.S. told her 23-year old cousin, Misty, about the assault but asked Misty not to tell anyone. E.S. did not make an outcry to Mary until approximately three months later. Martinez was subsequently charged with the assault.

At trial, Dr. Nancy Kellog, a pediatrician and expert in the area of physical and sexual abuse of children, testified for the prosecution. Dr. Kellog explained the examination process that she used on E.S. and gave a medical diagnosis of sexual abuse. Martinez appeals his conviction based on his trial counsel's failure to object to Dr. Kellog's testimony, arguing that it was an improper comment on E.S.'s credibility.

 

Standard of Review

A defendant is entitled to effective assistance of counsel under both the United States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2007). To prove ineffective assistance of trial counsel on appeal, an appellant must show: (1) counsel's assistance fell below an objective professional standard; and (2) counsel's actions thereby prejudiced appellant's defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant must prove, by a preponderance of the evidence that, but for counsel's error, the outcome of his trial would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In reviewing an ineffective assistance of counsel claim, we consider the totality of counsel's representation in light of the particular circumstances of the case and presume that counsel acted competently and made decisions based on a reasonable trial strategy. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). To rebut this presumption, the basis for any allegation of ineffectiveness must be affirmatively founded in the record. Thompson, 9 S.W.3d at 813. It is very difficult for an appellant to meet this burden when the record does not specifically mention counsel's reasons for his actions, and appellant does not develop an evidentiary record through a hearing on a motion for new trial. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). Therefore, a "substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal." Thompson, 9 S.W.3d at 813. However, "when no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Even if appellant is able to prove trial counsel's performance was deficient, appellant must also affirmatively prove that he was prejudiced by counsel's actions. Thompson, 9 S.W.3d at 812. Appellant must demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the trial's outcome. Id.

Discussion

Martinez contends his trial counsel erred when he did not object to Dr. Kellog's testimony that E.S. was telling the truth, resulting in ineffective assistance of counsel. Before we consider whether Martinez's counsel was ineffective, we must determine whether Dr. Kellog's testimony constituted an improper comment on E.S.'s truthfulness. Expert testimony is admissible only if it assists the jury in intelligently determining an issue that the jury would otherwise be unqualified to decide without the testimony. Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990). Expert testimony that identifies certain physical or behavioral manifestations of sexual abuse and relates these characteristics to the complainant is admissible even if the complainant has not been impeached. Yount v. State, 872 S.W.2d 706, 708-09 (Tex. Crim. App. 1993); Cohn v. State, 849 S.W.2d 817, 818-19 (Tex. Crim. App. 1993). However, "[e]xpert testimony does not assist the jury if it constitutes 'a direct opinion on the truthfulness' of a child complainant's allegations." Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (quoting Yount, 872 S.W.2d at 708).

Dr. Kellog testified that she uses a two-part examination to make a medical diagnosis. The most important part of the examination is the child's "history" concerning the sexual abuse which includes: the child's account of the abuse events, the child's emotional and behavioral symptoms, and the child's physical symptoms, if any. The second part of the exam is a complete physical undertaken to make certain the child is healthy. Dr. Kellog explained how she uses the information gathered from the examination to make a diagnosis:

I . . . evaluate the information. Sometimes it gives you experiential detail, what people said, what it felt like; essentially what type of detail, what they heard, what they saw. Also I'm looking at behavior or emotional difficulties they may have had. Sleeping difficulty [sic], for example, are some of the most common behavioral responses to abuse. I'm looking at everything together. It's not just one piece of information and one place that causes me to make a diagnosis. I'm looking at several things together.

 

....

 

. . . I focus more on eating, sleeping and thinking. It's intruding on their life in any way on a day to day basis. So I'm interested if they're having trouble sleeping or nightmares, trouble thinking or concentrating at school and why and if their eating patterns have changed since the abuse has occurred.

 

Dr. Kellog's testimony during the State's direct examination centered around her methodology for evaluating a complainant and making a medical diagnosis. Dr. Kellog pointed out that the physical and emotional manifestations described by the complainant were of particular importance in her diagnosis. Dr. Kellog considered the manifestations to be common responses to abuse. Although Dr. Kellog discussed the manifestations that E.S. exhibited, including: a three-month delay to outcry to her mother; physical manifestations of embarrassment during her examination; and problems eating and sleeping, she did not give a direct opinion as to E.S.'s truthfulness or make a psychiatric diagnosis. The only direct examination testimony of Dr. Kellog that possibly could be considered a comment on E.S.'s truthfulness is Dr. Kellog's testimony in response to a question about the normal physical examination:

A. Yes. And I mean, this check [mark] means that this child gave a good history in our diagnosis of sexual abuse. The exam was normal but we expected it to be normal given the time frame. If the history wasn't good, we would have checked off something else or we would have put something under "other."

Q. Whose diagnosis is that of child sexual abuse? Is that your medical diagnosis?

A. Yes.

 

Because there were measurable physical manifestations, however, Dr. Kellog's testimony was based on something other than the child's history alone. Cohn, 849 S.W.2d at 819; see also In re. N.J.Z., No. 14-01-00622-CV, 2002 WL 1478500, at *1 (Tex. App.--Houston [14th] June 27, 2002, no pet.) (not designated for publication). (1) Furthermore, Dr. Kellog's testimony assisted the jury because some of the manifestations of abuse would not be commonly known to lay persons such as: (1) the average child victim waits two years to outcry because they are worried about repercussions from family members; (2) teenagers who have reached puberty have a more difficult time revealing the abuse than small children because they are ashamed and embarrassed, (3) eighty-five percent of abuse cases reveal no damage to the hymen; and (4) common physical manifestations of abuse are sleeping and eating difficulties. Schutz, 957 S.W.2d at 73.

During Dr. Kellog's cross-examination, Martinez's counsel asked Dr. Kellog whether or not she relied on the patient being honest during the patient's evaluation, resulting in the following exchange:

Q. Now the other thing that you said with respect to the history--that part of the evaluation--you even emphasized the word 'most' when you said that's the most important part of your evaluation.

A. The history, yes.

Q. Okay. Now I note throughout your report . . . are the letters PER PT. What does that mean?

A. Per patient. That means it's from her.

Q. You're relying on what the patient is telling you?

A. When it's noted here it means it's information that came from the patient.

Q. And when it's coming from the patient, you are relying on that patient being honest with you, are you not?

A. I'm evaluating it. I can't always rely on the information. In this case I did rely on it to make my diagnosis because I did think the information was credible.

 

Dr. Kellog responded that she evaluates "it," meaning the patient's honesty, because she cannot always rely on the information. However, Dr. Kellog further explained that, in E.S.'s case, she was able to rely on "it" to make her diagnosis because she thought the information was credible. The question is whether Dr. Kellog believed the patient or the information was credible. Even if Dr. Kellog did not intend her response to be a comment on E.S.'s credibility, the jury may have believed Dr. Kellog concluded E.S. was credible based on her response. See Yount, 872 S.W.2d at 709-10. At that point, Martinez's counsel could have objected to the unresponsive portion of Dr. Kellog's answer, asserting it constituted an opinion on E.S.'s truthfulness.

Assuming, for the purposes of our discussion, that trial counsel's failure to object fell below objective professional standards, the record must also affirmatively prove that trial counsel's actions resulted in prejudice to Martinez. See Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.--Texarkana 2004, pet. ref'd). Looking at the entire record in context, we conclude that the conduct of Martinez's counsel did not likely change the result of the trial. See Ex Parte Menchaca, 854 S.W.2d 128, 132 (Tex. Crim App. 1993).

First, Dr. Kellog's comment regarding honesty was innocuous. Dr. Kellog's response could have been understood by the jury to refer to the information gathered and not to E.S. Dr. Kellog stated "I can't always rely on the information. In this case I did rely on it to make my diagnosis because I did think the information was credible." Moreover, neither the prosecutor nor Martinez's counsel asked Dr. Kellog if E.S. was being truthful, and Dr. Kellog did not give a direct response as to E.S.'s truthfulness. See Yount, 872 S.W.2d at 708 (citing Duckett, 797 S.W.2d at 915). Other than Dr. Kellog, no other witness for the State was asked about E.S.'s honesty or if E.S. was being truthful. (2) In his closing, the prosecutor did not emphasize Dr. Kellog's response to trial counsel's question regarding honesty. See Fuller, 224 S.W.3d at 836-37.

Additionally, Misty, E.S.'s outcry witness, testified that E.S. told her about the assault at E.S.'s first opportunity the day after it occurred. Misty testified that E.S. was "shocked, embarrass[ed], scared" and visibly upset when she made the outcry. Misty testified that they both cried when E.S. told her about the assault. Mary, E.S.'s mother, testified that she saw Martinez alone with the children at her house when she came home to drop off some clothes, and when E.S. told her about the assault, she immediately took E.S. to Planned Parenthood because she was worried that E.S. might be pregnant. E.S. testified that she missed her period from the time of the assault until after she told her mother about the assault, in May, indicating a manifestation of E.S.'s stress. Furthermore, there were other physical manifestations of E.S.'s abuse including: low body weight indicating eating problems; sleeping with the light on at the age of fourteen indicating sleeping difficulties and nightmares; constant foot tapping during the interview with Dr. Kellog indicating embarrassment and shame. See Schutz, 957 S.W.2d at 69. While none of these manifestations are decisive, together they corroborate the verbal description E.S. gave of her abuse symptoms. See id. Therefore, given the evidence presented and the innocuous nature of Dr. Kellog's comment to which trial counsel could have objected, we conclude Martinez was not prejudiced by his trial counsel's error.

Conclusion

Because we conclude that the conduct of Martinez's trial counsel did not prejudice the outcome of the trial, we affirm the judgments of the trial court.

 

Alma L. L pez, Chief Justice

Do Not Publish

1. Cf. Salinas v. State, 166 S.W.3d 368, 370-71 (Tex. App.--Fort Worth 2005, pet. ref'd) (determining that although the pediatrician's testimony, diagnosing sexual abuse and based on the child's testimony alone, was a direct comment on the credibility of the complainant, the error was not prejudicial).

2. In the ineffective assistance cases relied upon by Martinez, the witnesses were asked directly if they had an opinion about the complainant's truthfulness which educed "extensive, inadmissible, and critical testimony." Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.--Texarkana 2004, pet. ref'd); see also Fuller v. State, 224 S.W.3d 823, 836-37 (Tex. App.--Texarkana 2007, no pet.); Miller v. State, 757 S.W.2d 880, 884 (Tex. App.--Dallas 1998, pet. ref'd); Garcia v. State, 712 S.W.2d 249 (Tex. App.--El Paso 1986, pet. ref'd).