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Click here for the full text of this decision FACTS:J.W. testified that when she was about 15 years old, she and Michael Charles Fuller, who was dating J.W.’s mother and living with the family, “were watching TV as usual, and he just started the oral sex.” When the state asked J.W. to specify the acts involved, J.W. testified, “He got on top of me and he was pulling my shorts down, and I’m trying to get him off of me, but he wouldn’t move. I couldn’t move him. And he started the oral sex.” As further evidence, the state introduced over defense objection a letter in which J.W. wrote that Fuller pulled her panties down and “began licking rough.” Fuller testified in his defense and denied having oral sex with J.W. Fuller also produced two witnesses who testified that J.W. had “said nothing happened” and had “said that she would do whatever she could to get [Fuller] away from her mother.” Still, Fuller asserts that J.W.’s testimony is too vague to constitute legally sufficient evidence because the term “oral sex” could just as easily reference contact between J.W.’s mouth and Fuller’s genitals, which would be contact not charged. A jury convicted Fuller of one count of sexual assault of a child and two counts of indecency with a child, namely, J.W., his girlfriend Connie Moore’s then-15-year-old daughter. The jury assessed punishment, respectively, at eight years, five years and five years of confinement. The trial court sentenced Fuller to those terms, to run concurrently. Fuller raised nine issues on appeal. HOLDING:Reversed and remanded. In issues eight and nine, Fuller asserted speedy trial violations. More than four years elapsed between the filing of the indictment and Fuller’s trial. But the court stated that Fuller never raised the speedy trial issue � by requesting a trial date or by seeking dismissal of the case � until after the trial was concluded. Thus, the court found that Fuller waived any speedy trial violation by not objecting at or before trial. In issue five, Fuller asserted that legally insufficient evidence supported the sexual assault conviction. Texas Penal Code �22.011(a)(2)(C) required the state to prove that Fuller intentionally or knowingly caused J.W.’s sexual organ to contact Fuller’s mouth. The court deferred to the jury’s credibility and weight determinations, implicit in the verdict, that J.W.’s story was credible despite the testimony of Fuller and other defense witnesses. In addition, Fuller asserted that J.W.’s testimony was too vague to constitute legally sufficient evidence, because the term “oral sex” could just as easily reference contact between J.W.’s mouth and Fuller’s genitals, which would be contact not charged. But the court stated that the jury could make reasonable inferences from the evidence. The inference, the court stated, that Fuller committed the offense described in �22.011(a)(2)(C) rises from combining J.W.’s testimony about oral sex with the letter referencing Fuller’s “rough licking” and is more than reasonable. Therefore, the court found upon viewing all of the evidence in the light most favorable to the verdict that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In issues one and two, Fuller claimed that ineffective assistance of counsel pervaded the entire defense. To prevail on an ineffective assistance of counsel claim, the court stated, an appellant must show that: 1. A defense attorney’s representation fell below an objective standard of reasonableness; and 2. the deficient performance prejudiced the defense. When no reasonable trial strategy could justify the attorneys’ conduct, then the attorney’s performance falls below an objective standard of reasonableness as a matter of law. Fuller complained that his attorney was ineffective in not objecting to the state’s repeated badgering of and sidebar comments about Fuller. Fuller testified in his defense at both the guilt/innocence and punishment phases of the trial. Fuller’s counsel made no objections in this lengthy exchange during the state’s cross-examination of Fuller. But the court found that the attorney’s failure to object could have been part of a plausible trial strategy to avoid emphasizing the matter to the jury or avoid having the jurors believe that Fuller was hiding something from them. Fuller further asserted that counsel was ineffective by: 1. not objecting to J.W.’s hearsay testimony that she had “heard about [Fuller] through friends, and it just wasn’t a good reputation that he had through the public” and that she “heard” from a friend at school that Fuller was cheating on her mother; 2. not objecting to the state’s use of leading questions in the direct examination of several of the state’s witnesses; and 3. not objecting to the state’s improper impeachment of defense witness Wallace through an “onslaught of attack,” which included hostile and rude questions regarding Wallace’s child visitation and support payment history (both good), and misdemeanor convictions for marijuana possession, criminal mischief and assault. But the court similarly found that a failure to object in those instances could have been part of a plausible trial strategy. Fuller, the court stated, also complained of a “more glaring deficiency” at the punishment phase of the trial. Fuller’s counsel failed to object to the introduction through several witnesses of evidence that Fuller was actually guilty of possessing drugs in 1992, even though Fuller had been acquitted of that charge by a jury. In fact, much of the punishment phase of Fuller’s trial was focused on relitigating this earlier offense. While the state’s actions suggested a double jeopardy collateral estoppel rule violation, the court stated that the record presented on direct appeal did not contain the record of the prior proceeding. Because Fuller did not present that evidence, the court stated that it could not find that the admission of the evidence was objectionable. Finally, Fuller asserted that his trial attorney was ineffective by not objecting to the state’s bolstering of J.W.’s truthfulness and credibility through both experts and lay witnesses. Indeed, the state called, in addition to J.W., four witnesses, each of whom testified in some manner that J.W. was telling the truth. Three of these witnesses testified to the specific truthfulness and credibility of J.W.’s allegations. The witnesses included J.W.’s mother Connie, J.W.’s teacher, Lieutenant Danny Huff, an expert in child sexual assault investigations, and Stephanie Hunt, a Child Advocacy Center forensic interviewer. The court found that Fuller’s defense attorney had no plausible trial strategy for not objecting to this inadmissible “bolstering” testimony and that his conduct was deficient. Under Texas Rule of Evidence 702, the court stated, “expert testimony that a particular witness is truthful is inadmissible. Similarly, an expert may not offer a direct opinion on the truthfulness of a child complainant’s allegations. The defense attorney’s tactic, the court stated, “seems to have been to allow, without objection, the State’s witnesses to testify to the credibility and truthfulness of J.W.’s allegations and then, on cross-examination, to explore the foundation for that witness’ belief in the credibility, believability, or truthfulness of J.W.’s allegations.” But lack of a proper foundation, the court stated, is not the problem with the offensive testimony. Rather, it is inadmissible whether properly founded or not. Not surprisingly, counsel’s “tactic” resulted in only more bolstering. Given the context of the trial � that Fuller’s entire defense was that J.W.’s allegations were false and yet Fuller’s attorney allowed every state’s witness to testify to the truthfulness and credibility of J.W.’s allegations � and judging the attorney’s performance by the totality of the representation, the court found that the record affirmatively demonstrated the attorney’s conduct fell outside the wide range of reasonable representation and was objectively deficient. Moreover, the court found that the deficiencies denied Fuller a fair trial. The trial attorney’s representation of Fuller so undermined the proper functioning of the adversarial process, the court stated, that the trial could not be relied on as having produced a just result. OPINION:Carter, J.; Morriss, C.J., and Carter and Moseley, J.J.

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