Roy Landaverde v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00228-CR

ROY LANDAVERDE,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2020-51-C1

MEMORANDUM OPINION

A jury found Roy Landaverde guilty of four counts of aggravated sexual assault

of a child and assessed punishment at 25 years in prison for each count, each running

concurrently with the others. Because trial counsel did not render ineffective assistance

and because the trial court did not abuse its discretion in designating the outcry witness,

we affirm the trial court’s judgment.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first and second issues, Landaverde asserts that his trial counsel failed to
render effective assistance on two separate occasions when counsel failed to object to

hearsay and expert opinion testimony.

Law

To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy

a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, the appellant

must show that counsel was so deficient as to deprive the appellant of his Sixth

Amendment right to counsel. Strickland, 466 U.S. at 687. To satisfy this first prong, the

appellant must show that his counsel's representation was objectively unreasonable.

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Second, the appellant must

show that the deficient representation was prejudicial and resulted in an unfair trial. Id.

To satisfy this second prong, the appellant must show there is "a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." Thompson, 9 S.W.3d at 812. A reasonable probability exists if it is enough to

undermine the adversarial process and thus the outcome of the trial. See Strickland, 466

U.S. at 694; Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001).

The appellant bears the burden of proving by a preponderance of the evidence

that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded

in the record. Thompson, 9 S.W.3d at 813. An appellant's failure to satisfy one prong of

the test negates a court's need to consider the other prong. Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009).

As the reviewing court, we look to the totality of the representation and the

Landaverde v. State Page 2
particular circumstances of each case in evaluating the effectiveness of counsel.

Thompson, 9 S.W.3d at 813. Our review is highly deferential, and we presume counsel's

actions fall within a wide range of reasonable professional assistance. Mallett, 65 S.W.3d

at 63.

Further, trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex.

Crim. App. 2003). Absent specific explanations for counsel's decisions, a record on direct

appeal will rarely contain sufficient information to evaluate or decide an ineffective-

assistance-of-counsel claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Thus, to warrant reversal without affording counsel an opportunity to explain his actions,

"the challenged conduct must be 'so outrageous that no competent attorney would have

engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007) (quoting

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

In this case, on neither occasion was trial counsel afforded an opportunity to

explain his actions. Thus, we look to see whether counsel’s alleged failure to object was

“so outrageous that no competent attorney would have engaged in it.” Id.

Hearsay

Landaverde first claims his trial counsel rendered ineffective assistance when

counsel failed to object to hearsay statements from B.B., the child victim, through the

testimony of a physician which were allegedly not made in connection with a valid

medical diagnosis pursuant to Texas Rule of Evidence 803(4). Landaverde contends that

since B.B. would not submit to a genital examination, it was questionable as to whether

Landaverde v. State Page 3
B.B. was presented to the physician for the purpose of medical treatment and diagnosis.

Thus, his argument continues, if B.B. was not presented to the physician for the purpose

of medical treatment and diagnosis, the physician’s testimony as to B.B.’s statements was

inadmissible hearsay, and trial counsel should have objected.

Dr. Soo Battle is a pediatrician with the Advocacy Center for Crime Victims and

Children. She explained that children who have been sexually, emotionally, or physically

abused are referred to the Center by law enforcement or Child Protective Services. Those

children first participate in a forensic interview at the Center. If a child has been sexually

assaulted more than five days prior to the referral, the child goes to Dr. Battle for a

“delayed outcry medical exam.” Dr. Battle stressed that she does not conduct a medical

exam to obtain specific information on behalf of CPS or law enforcement. The purpose

of the medical evaluation, as she had explained to B.B., was to confirm that B.B.’s body

was healthy. Even though there may not be any scientific evidence, Dr. Battle explained,

other health concerns are still present which need to be evaluated if the child was sexually

abused. Such concerns include sexually transmitted infections, pregnancy, anxiety or

fear about the child’s body, or mental, behavioral, and emotional signs and symptoms.

During the medical exam, Dr. Battle checked B.B. for gonorrhea, chlamydia, and

pregnancy. The results of those tests were all negative.

Dr. Battle always tells the children she examines that if the child does not want her

to do any part of the exam, she will not do it. She does not want to cause any more trauma

to the child. In this case, B.B. refused the genital exam. Dr. Battle estimated that about

10-20 of the patients she has seen have refused the genital exam. Dr. Battle explained that

Landaverde v. State Page 4
even if a genital exam is performed, 90 to 95 percent of children who have been sexually

abused have normal exams. She further explained that typically, in the vast majority of

children, there is no way to know by looking at their genitalia whether or not they have

been penetrated.

A statement that is made for, and is reasonably pertinent to, medical diagnosis or

treatment and describes medical history, past or present symptoms or sensations, their

inception, or their general cause is an exception to the rule against hearsay. TEX. EVID. R.

803(4). "The object of a sexual assault exam is to ascertain whether the child has been

sexually abused and to determine whether further medical attention is needed. Thus,

statements describing acts of sexual abuse are pertinent to the victim's medical diagnosis

and treatment." Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref'd);

accord Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—Eastland 1996, pet. ref'd); see also

Macias v. State, 776 S.W.2d 255, 259 (Tex. App.—San Antonio 1989, pet. ref'd) (holding

that Rule 803(4) "has been interpreted to allow a physician to testify to a child's statements

relevant to the external event causing an injury").

After reviewing Dr. Battle’s testimony, we conclude a medical exam within the

meaning of Rule 803(4) was conducted. Accordingly, counsel’s alleged failure to object

to B.B.’s statements as testified to by Dr. Battle was not “so outrageous that no competent

attorney would have engaged in it,” Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim.

App. 2007), and Landaverde failed to prove his trial counsel rendered ineffective

assistance in this instance.

Landaverde’s first issue is overruled.

Landaverde v. State Page 5
Expert Opinion Testimony

Landaverde also contends his trial counsel should have objected to the testimony

of, Dr. William Lee Carter, a State’s witness, because Dr. Carter’s testimony was

presented only to bolster B.B.’s credibility. Landaverde points to three specific instances

in the record where he believes Dr. Carter bolstered B.B.’s credibility.

Dr. Carter, a licensed psychologist, had performed psychological evaluations and

court services, i.e. parole evaluations, juvenile offender evaluations, and competency

evaluations, for the last 21 years. He was called as a witness in this case to give the jury

an understanding of why children who have been abused might act a certain way or say

certain things. Necessarily, Dr. Carter used B.B.’s actions, inactions, and statements to

give the jury a general understanding of why B.B. might have acted in a certain way or

said certain things, not to inform the jury that B.B. was telling the truth. For example, the

following question and answer between the State and Dr. Carter took place after Dr.

Carter began to evaluate B.B.’s testimony:

Q. And you're not here to tell the jury what happened or not. You're here
mainly to explain the dynamics of this world of child abuse; is that right?

A. Correct. And in making that statement I just made, I guess what I'm
highlighting is that he took control of the relationship. Control is almost
always a central word in child sex abuse cases.

The tenor of Dr. Carter’s testimony was to explain “the world of child abuse” as it

pertained to B.B., not to give credence to her testimony. Thus, in reviewing Dr. Carter’s

testimony, counsel’s alleged failure to object to any of that testimony was not “so

outrageous that no competent attorney would have engaged in it,” Roberts v. State, 220

Landaverde v. State Page 6
S.W.3d 521, 533-34 (Tex. Crim. App. 2007), and Landaverde failed to prove his trial

counsel rendered ineffective assistance in this instance.

Landaverde’s second issue is overruled.

OUTCRY WITNESS

In his third issue, Landaverde asserts the trial court abused its discretion in

designating an outcry witness pursuant to article 38.072 of the Texas Code of Criminal

Procedure. Landaverde complains in this issue that the State did not prove B.B.’s

counselor, Adreanne Dugger, was the proper outcry witness when B.B. had earlier made

an outcry to her friend, September, and the evidence conflicted as to whether September

was an adult. 1 Thus, he argues September was the proper outcry witness, and the trial

court abused its discretion in permitting Dugger to testify as the outcry witness.

Article 38.072 governs the admissibility of certain hearsay evidence in trials for

specified crimes against a child younger than fourteen years old. See TEX. CODE CRIM.

PROC. art. 38.072. The statute creates a hearsay exception and allows testimony of the

first adult in whom a child confides regarding sexual or physical abuse. See id. at 38.072

§ 2(a)(3); Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005). The child's

statement to the adult is commonly known as the "outcry," and the adult who testifies

about the outcry is commonly known as the "outcry witness." Sanchez v. State, 354 S.W.3d

1
We question whether the State had the burden to prove or disprove September was the proper outcry
witness. See Espinoza v. State, 571 S.W.3d 427, 432 (Tex. App.—Fort Worth 2019, pet. ref'd) (“Garcia [v. State,
792 S.W.2d 88 (Tex. Crim. App. 1990)] appears to have abandoned the general rule that the proponent of
evidence bears the burden of proving its admissibility, thus reversing the traditional burden of proof in
situations like the one before us, see TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3) ….”). However, a
determination of that question is not necessary to the disposition of this issue.

Landaverde v. State Page 7
476, 484 (Tex. Crim. App. 2011). The Texas Court of Criminal Appeals has explained that

under article 38.072, the proper outcry witness is the first adult person to whom the child

describes the alleged offense in some discernible manner beyond general insinuations

that sexual abuse occurred. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); see

Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).

The trial court has "broad discretion" in determining the admissibility of outcry

evidence. Garcia, 792 S.W.2d at 92. The exercise of that discretion will not be disturbed

absent a clear abuse of discretion. Id. A trial court abuses its discretion when it acts

arbitrarily, unreasonably, or without reference to any guiding rules or principles.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). We will not reverse a

trial court's ruling if it was within the zone of reasonable disagreement, and we must

uphold the ruling "if it is reasonably supported by the record and is correct under any

theory of law applicable to the case." Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.

Crim. App. 2005).

The trial court held a hearing outside the presence of the jury to determine if

Dugger was the proper outcry witness. It was established before the hearing that B.B.

was 13 at the time of the assault. At the hearing, Dugger testified on cross-examination

that she thought September was only a year or two older than B.B. When she was then

asked, “Would it surprise you — would it surprise you to learn that [September] was —

I believe she was an adult [,]” Duggar replied that it would surprise her.

This question to Dugger on cross-examination and Dugger’s corresponding

answer do not amount to evidence that September was an adult; and no other testimony

Landaverde v. State Page 8
about September’s age was brought forth at the hearing. 2 Thus, there was no conflict in

the evidence, and the trial court did not abuse its discretion in designating Duggar as the

outcry witness.

Landaverde’s third issue is overruled.

CONCLUSION

Having overruled each issue on appeal, we affirm the trial court’s judgment.

LEE HARRIS
Justice

Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Opinion delivered and filed February 13, 2025
Do not publish
[CRPM]

2
During the trial, the consensus of the testimony revealed that September was either 15 or 16 years old at
the time of the alleged outcry; there was no testimony that September was an adult.

Landaverde v. State Page 9