OPINION From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR5622 Honorable Mark Luitjen, Judge Presiding[1] Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice Delivered and Filed: August 12, 2020 AFFIRMED John Anthony Vega appeals the trial court’s judgment sentencing him to fifteen years’ imprisonment. Vega presents one issue asserting his trial counsel rendered ineffective assistance of counsel. BACKGROUND Vega was charged by indictment with two second-degree felony counts of indecency with a child under the age of 14 in violation of Penal Code § 21.11(a)(1). Count I accused Vega of touching the genitals of Y.M., his stepdaughter; Count II accused him of touching her breasts. The charges stemmed from a night when Vega’s wife, son, and stepdaughter slept in the same bed with Vega. Y.M., who was twelve at the time, woke up to find Vega with his hand under her clothing, touching her breasts and her vagina. The following day, Y.M. made an outcry to her mother. Y.M.’s mother then told her own sister, Y.M.’s aunt, about the incident, asking her not to tell anyone. Y.M.’s aunt advised Y.M.’s mother to call the police, but when she would not, Y.M.’s aunt called Child Protective Services (CPS). Following this report, Y.M. recounted the incident to a CPS Investigator, two CPS caseworkers, her therapist, and her licensed counselor. Y.M. also told her aunt what happened. At trial, Y.M. was called by the State to testify about the incident. After Y.M. testified, the State called the CPS Investigator and two CPS caseworkers to testify regarding their conversations with Y.M. Vega’s trial counsel did not object to the testimony. Y.M.’s mother also testified. She described Y.M.’s outcry, as well as a statement by Y.M. that Vega did not intentionally touch her, and she related Vega’s habit of reaching out and touching his wife while he was asleep. She also testified that her daughter was a sleepwalker and did not remember her actions while sleepwalking. After the mother testified, the State elicited testimony from Y.M.’s therapist and counselor on what Y.M. told each about the incident. Again, Vega’s trial counsel did not object. A jury found Vega guilty on both counts and sentenced him to 15 years in prison. Vega appeals the jury’s conviction on the sole ground that his trial counsel provided him ineffective assistance of counsel. INEFFECTIVE ASSISTANCE OF COUNSEL Arguments Vega argues that his trial counsel’s performance fell below an objective standard of reasonableness and violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution. Specifically, Vega contends his trial counsel failed to object to hearsay evidence from several outcry witnesses in violation of article 38.072 of the Texas Code of Criminal Procedure, assumed representation beyond his competence, was ignorant of the laws of evidence and criminal procedure, and failed to represent Vega’s interests to achieve a just result in an adversarial system. Vega concludes that, were it not for his trial counsel’s deficient performance, there is a substantial likelihood that the trial’s outcome would have been different. The State responds that trial counsel’s failure to object to the testimony of five outcry witnesses amounted to trial strategy and that any deficient performance did not prejudice Vega. Standard of Review and Applicable Law Both the United States and the Texas Constitutions guarantee individuals the right to effective criminal representation. U.S. CONST. amend. VI; TEX. CONST. art. 1 § 10. “To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate two things: deficient performance and prejudice.” Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984).; see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). An appellant “bears the burden of proving by a preponderance of the evidence that counsel was ineffective.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Deficient Performance To establish deficient performance, an appellant must show counsel’s assistance “fell below an objective standard of reasonableness.” Id. at 812. An appellant must overcome the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Id. at 813. “[T]hat is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Ex Parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011). “To defeat the presumption of reasonable professional assistance, ‘any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.’” Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998)). If no reasonable trial strategy can justify counsel’s choices or conduct, performance necessarily falls below an objective standard of reasonableness. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). However, few cases demonstrate such deficiency on direct appeal because the record is unlikely to include any explanation by trial counsel, and “we can [frequently] conceive potential reasonable trial strategies that counsel could have been pursuing.” Id. at 103; see also Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). Prejudice Once an appellant establishes deficient performance, the appellant must then establish prejudice. See Lopez, 343 S.W.3d at 142. An appellant “must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Thompson v. State, 9 S.W.3d at 812. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (citing Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986)). Analysis Failure to Object to the Testimony of Five Outcry Witnesses In cases involving sexual conduct against a child younger than 14 years of age, an out-of- court statement made by the victim to the first adult they outcry to may be admissible hearsay so long as the requirements of article 38.072 are met. TEX. CODE CRIM. PROC. art. 38.072; Lopez, 343 S.W.3d at 140; Prestiano v. State, 581 S.W.3d 935 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). Here, Vega claims his trial counsel failed to object to the hearsay testimony of five witnesses regarding the victim’s outcry statements. The Court of Criminal Appeals and the Houston First Court of Appeals addressed similar ineffective-assistance claims on similar silent records. See Lopez, 343 S.W.3d at 140; Prestiano, 581 S.W.3d 935. In Lopez, three witnesses testified at trial as to what a child told them about the same event involving an aggravated sexual assault. Lopez, 343 S.W.3d at 140. Under article 38.072, the testimony of two of the witnesses was improper, constituting inadmissible hearsay that merely bolstered the child’s own testimony. Id. (citing TEX. CODE CRIM. PROC. art. 38.072). On appeal, Lopez argued that this attorney failed to invoke article 38.072 to limit the hearsay admitted against him. Id. The State responded with several possible theories, including the tactical decision to allow hearsay to impeach the child’s outcry. Id. at 141. The Court of Criminal Appeals held that, given that the record was silent as to trial counsel’s reasons for allowing the hearsay testimony without objection, Lopez failed to show his trial counsel’s performance was deficient. Id. at 143- 44. In Prestiano, defense counsel did not object to a therapist’s hearsay testimony about a minor victim’s statements concerning sexual abuse and to corresponding exhibits. Prestiano, 581 S.W.3d at 948. Relying on Lopez, the Houston First Court of Appeals concluded that it was conceivable that counsel made a strategic decision to refrain from objecting in order to “reveal any inconsistencies in the child’s account of the sexual abuse.” Id. at 948. “On this record, we must assume that Prestiano’s lawyer’s inaction resulted from a tactical choice to incur the risk posed by the hearsay in exchange for the opportunity to expose inconsistencies in the child’s testimony and to challenge her credibility.” Id. In this case, Vega moved for a new trial after he was convicted, but he did not raise ineffective assistance of counsel. As in Lopez and Prestiano, Vega’s trial counsel did not have the opportunity to explain why he did not object to the testimony of outcry witnesses or request a reliability hearing under article 38.072(b)(2) when the State called the mother to testify regarding the outcry. The State raises the theory that defense counsel’s strategy was to impeach Y.M.’s testimony. We agree with the State that its theory is supported by defense counsel’s final argument where he argued that Y.M.’s story was less than credible because it changed each time she recounted the incident to the various outcry witnesses. Support for the State’s theory is also found in trial counsel’s affidavit attached to Vega’s motion for new trial where trial counsel testified that Y.M. “had several conflicting accounts of what allegedly happened.” Furthermore, although Vega submitted a motion for new trial with an affidavit from trial counsel, neither the motion nor the affidavit discuss trial counsel’s strategy. On the record before us, we must assume that Vega’s trial counsel’s tactical choice at trial was not to object to hearsay and, instead, challenge Y.M.’s credibility. We disagree with Vega’s argument that “no reasonable trial strategy could justify his counsel’s failure to object to the inadmissible bolstering hearsay.” We conclude that Vega’s trial counsel’s failure to object to five outcry witnesses did not constitute deficient performance and, instead, falls within the sound trial strategy presumption. Trial Counsel’s Competency and Ignorance of the Laws of Evidence and Criminal Procedure Vega advances the proposition that because his trial counsel demonstrated an unfamiliarity with rules of evidence and criminal procedure before and during trial, it was “obvious that trial counsel was not professionally competent to assume representation of a criminal defendant charged with sexual abuse of a child.” Vega avers that because the totality of the record establishes that Vega’s trial counsel assumed representation beyond his competence, his “failure to object to inadmissible and bolstering hearsay was not a choice or strategy but the result of incompetence.” The State argues that even if Vega’s trial counsel was not familiar with the law, Vega was not prejudiced. We agree. Unfamiliarity with Rules of Evidence and Criminal Procedure at Pretrial Hearing Vega directs us to three pretrial hearings where he alleges his trial counsel admitted or demonstrated unfamiliarity with basic criminal procedure and rules of evidence. In the first pretrial hearing, Vega claims, his trial counsel was ineffective when advising the court that he did not know how to subpoena a CPS caseworker who had moved, stating he had “not tried one of these cases in over 20-something years . . . .” Vega claims that in a second pretrial hearing, his trial counsel was ineffective when he indicated he needed to research the law on whether the State’s request for disclosure of experts under article 39.14 of the Texas Code of Criminal Procedure was automatic or required a court ruling. In a third pretrial hearing, regarding the State’s motion to increase Vega’s bond, Vega claims his trial counsel failed to secure a witness through the subpoena process. In all three instances, even if we assume deficient performance on the part of Vega’s trial counsel, Vega was not prejudiced. The record reflects that (a) the CPS caseworker testified at trial, (b) trial defense counsel did not call any expert witness at trial, and (c) the trial court denied the State’s motion to increase Vega’s bond. We conclude that Vega failed to meet his burden to show a reasonable probability that, but for his trial counsel’s errors at the pretrial hearings, the result of each would have been different. See Thompson, 9 S.W.3d at 812. Unfamiliarity with Rules of Evidence and Criminal Procedure at Trial Vega next claims that his trial counsel’s lack of familiarity with the law continued at trial. Specifically, he points out that trial counsel’s ignorance of criminal law and procedure and the rules of evidence is evident by his (a) failing to invoke article 38.072(b)(2)’s requirement for a reliability hearing outside the presence of the jury, (b) impeaching witnesses without the proper predicate, (c) offering inadmissible evidence, and (d) accepting employment beyond his competence in violation of Texas Disciplinary Rule of Professional Conduct 1.01(a). Article 38.072(b)(2)’s Requirement for a Reliability Hearing Vega’s trial counsel’s failure to invoke article 38.072(b)(2)’s requirement for a reliability hearing falls in the same category as his failure to object to the five outcry witnesses. For the reasons stated in that portion of our opinion, we consider the failure to request a reliability hearing part of trial counsel’s trial strategy. See Lopez, 343 S.W.3d at 140; Prestiano, 581 S.W.3d at 948. Accordingly, Vega’s claim that his trial counsel was inefficient by not requiring a reliability hearing fails. Impeachment of a Witness Without Proper Predicate Vega claims his trial counsel was “unable to effectively pursue his strategy of challenging Y.M.’s credibility through prior inconsistent statements due to his obvious unfamiliarity with the evidentiary rules.” When cross-examining Y.M., trial counsel attempted to introduce a recording of Y.M.’s interview with her CPS caseworker but was unable to do so over the objection of the State on the grounds that he failed to lay the proper predicate. The record also reflects that the video was later introduced through the CPS caseworker. Therefore, Vega has failed to meet his burden to show a reasonable probability that, but for his trial counsel’s error, the outcome of the case would have been different. See Thompson, 9 S.W.3d at 812. Offering Inadmissible Evidence under Texas Rule of Evidence 412 Vega claims that during Y.M.’s cross-examination, his trial counsel attempted to ask Y.M. about nude photographs she sent a boy from school. The State objected to inadmissible evidence under Rule 412 of the Texas Rules of Evidence, which generally prohibits the introduction of evidence regarding an alleged victim’s sexual history. The trial judge sustained the State’s objection and asked Vega’s trial counsel if he had ever seen Rule 412(a). Trial counsel admitted he had not. Vega argues that such admission affirmatively demonstrates trial counsel’s admitted ignorance of crucial evidentiary rules in sexual abuse cases. However, the record does not show this error affected the outcome of the case. Did Trial Counsel Accept Employment Beyond His Competence in Violation of Texas Disciplinary Rule of Professional Conduct 1.01(a)? Vega invokes Rule 1.01(a) of the Texas Disciplinary Rules of Professional Conduct for the proposition that Vega’s trial counsel assumed representation beyond his competence. Rule 1.01(a) provides: A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless: another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. TEX. DISP. R. PROF. CONDUCT 1.01(a). Vega argues that by accepting employment in a criminal matter beyond his competence as set forth in rule 1.01, trial counsel not only violated his duty to refrain from representation but also failed to represent Vega’s interests to achieve a just result in an adversarial trial under Strickland and Cantu v. State. See Strickland, 466 U.S. at 688; Cantu v. State, 930 S.W.2d 594, 605 (Tex. Crim. App. 1996) (J. Baird concurring) (citing Strickland, 466 U.S. at 685–86). However, Vega’s underlying complaint is trial counsel’s failure to object to the State’s hearsay witnesses, which we conclude falls under the presumption of trial strategy. See Strickland, 466 U.S. at 689; Ex Parte Martinez, 330 S.W.3d at 900. CONCLUSION On this record we cannot preclude that trial counsel’s failure to object to hearsay evidence relating to various outcry witnesses, despite article 38.072 of the Texas Code of Criminal Procedure, constituted trial strategy. With respect to Vega’s other claims, we conclude Vega failed to demonstrate that any alleged deficiency prejudiced the outcome of the case. The trial court’s judgment is affirmed. Patricia O. Alvarez, Justice PUBLISH
