Jonathan Davis v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00230-CR
NO. 09-22-00231-CR
__________________

JONATHAN DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee
__________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 20-36118 and 20-36119
__________________________________________________________________

MEMORANDUM OPINION

Jonathan Davis appeals from judgments in trial court cause

numbers 20-36118 and 20-36119, judgments that resulted from a

consolidated trial before a jury on indictments alleging that Davis

sexually assaulted Grace (a child), and that he engaged in an indecent

1
sexual act that involved Grace. 1 Davis appealed and filed separate briefs

to support the two appeals. The briefs, however, raise the same issues

and argue: (1) the judgments of conviction should be reversed because the

evidence is insufficient to support them, and (2) he is entitled to be retried

on the two indictments because he didn’t receive the effective assistance

of counsel in his trial.

Because Davis’s arguments lack merit, we will affirm the

judgments of conviction in the two causes from which Davis appealed.

Procedural History and Background

In one indictment, the grand jury alleged that Davis intentionally

or knowingly caused his sexual organ to contact Grace’s anus (Cause

Number 20-36118). In the other, the grand jury alleged that Davis

engaged in sexual contact with Grace by touching her genitals with the

1To protect the victim’s privacy, we have used pseudonyms for some

of the names including the child’s name. See Tex. Const. art. I, § 30 (“A
crime victim has the . . . right to be treated with fairness and with respect
for the victim’s dignity and privacy.”); Tex. Code Crim. Proc. Ann. art.
58.152 (providing for the use of pseudonyms in order to maintain
confidentiality of files and records of victims of sexual assault). When a
pseudonym is first used to substitute for a name, we have identified the
name with italics.

2
intent to arouse a person’s sexual desire. 2 Both indictments alleged that

the offenses occurred on or about June 11, 2016. Several of Grace’s

relatives testified in the trial. Rhonda is Grace’s mother. Ella is Grace’s

mother and Grace’s grandmother. Jim is Grace’s father. Lily is Jim’s

mother and Grace’s grandmother. When the case was tried in 2022, Grace

was eleven years old, she was eight years old when she claimed that

Davis engaged in the acts that were at issue in the trial, and five years

old in the summer of 2016 when the events on which the indictments

were based occurred. As we will explain, the evidence supporting the

jury’s finding of penis-to-anal contact and supporting the jury’s finding

that Davis touched Grace’s genitals hinges almost entirely on the sexual

assault examination and testimony of the nurse who examined Grace in

August 2019.

The case against Davis was tried in July 2022. Viewed in the light

most favorable to the verdict, the evidence shows that Rhonda has known

2Tex. Penal Code Ann. § 22.021(a)(1)(iii) (aggravated sexual assault

by contact); id. § 21.11(a)(1) (indecency with a child through sexual
contact).
3
Davis since around 2014. According to Rhonda, who testified in the trial,

her mother Ella has known the Davis “family forever.”

During the trial, Rhonda testified that in the summer of 2015, she

was living in a house in Beaumont with her children—Grace and Kassi—

and her mother, Ella. That summer, after Rhonda learned that Davis

needed a place to live, he moved to Rhonda’s home.

By 2019, Davis was no longer living in Rhonda’s home. But that

summer, several members of Rhonda’s family had gathered at Rhonda’s

house, and Davis stopped by. While Davis was there, Rhonda noticed that

Grace had disappeared. According to Rhonda, before Davis left, she saw

Grace “was in tears[.]” Rhonda told the jury that Grace told her to ask

Davis to leave. In response, Rhonda said that she asked Grace to explain

why. Grace told her, “[h]e just makes me feel uncomfortable.” By

Rhonda’s account, Grace was “crying and shaking[,]” so she took Grace to

Ella’s room (Grace’s grandmother) while she went to find Davis so that

she could tell him that he needed to leave. Grace talked to Ella about

what Davis had done.

After Davis left, Rhonda testified that she asked Grace whether she

wanted to “talk to me about it.” Grace declined. Rhonda explained that
4
because Grace had plans to leave town to go to her father’s in Georgia for

the holidays, she “sent her to her dad’s and [ ] didn’t do nothing at the

time.” Rhonda offered this excuse for not reporting Davis to authorities

the day she claimed to have learned what Grace told Ella (Grace’s

maternal grandmother) about what Davis had done:

[Grace] lies a lot but, I mean, I didn’t think she was lying but
I didn’t want to just straight outright accuse somebody for
something and you know, have their name – that title on his
name or anything without proof or without being 100 percent
sure that it was true.

The State also called Ella as a witness in the trial. That said, the

prosecutor never asked Ella to state exactly what Grace told her in July

2019 when Rhonda took Grace to Ella’s room. Instead, the prosecutor

questioned Ella, as follows, and no one asked Ella to provide any further

detail:

Q. And when you met with [Grace] in your room, did she say
anything to you about feeling uncomfortable?
A. Yes.
Q. Had you seen her like that before around the defendant?
A. No, not till that day. But he wasn’t coming to the house like
‘cause he wasn’t staying at the house anymore.
Q. Yeah.
A. So . . .
Q. So, what did you do with the information that you got from
[Grace]?
A. I told him not to come back to my house anymore.
5
Q. And did he comply with that request?
A. Yeah. He wanted to know why but I couldn’t tell him at the
time[.]

Ella testified she didn’t report Davis to authorities but gave the

information that Grace gave her to Rhonda and cooperated with

authorities when the authorities did later become involved.

Lily, Grace’s paternal grandmother, testified about the

circumstances that led to the involvement of the police. According to Lily,

while Grace was in Georgia visiting her father, Grace told her that she

had been sexually abused. Lily called authorities in Georgia, but they

told her to give the authorities in Beaumont a call. Lily testified that she

“called [the] Beaumont, Texas, police department and here we are.” No

one asked Lily to testify about what she told the police or what Grace told

her, but Lily did testify that when Grace told her what happened, she

was:

Shaking. She was nervous. Her whole world just fell apart
when she told this to me, because she’s been holding it in. And
when it came out, she was – I have never seen her like that
before.

Grace’s father, Jim, testified that he found out about what Grace

was alleging occurred from his aunt and that he immediately “dropped

6
everything” and went to “his aunt’s house because my daughter was over

there.” According to Jim, Grace was crying, he tried to talk to her, but

“she wouldn’t talk to me about it[.]”

The State called Jennifer Luna, an employee of Garth House, which

Luna explained provides “forensic interview, family advocacies, therapy,

community outreach, and education[,]” in a six-county area in southeast

Texas. Luna testified she conducts forensic interviews, described her

credentials, and explained that she interviewed Grace in August 2019.

Luna testified that Grace told her about the acts of sexual abuse that had

occurred, that she named Davis as the perpetrator, and that Grace

provided her with sufficient details of the abuse that she didn’t feel it was

necessary to interview other witnesses based on the information Grace

provided. In any event, no one asked that Luna specify whether Grace

told her the details of the alleged sexual acts, meaning whether there had

specifically been penis-to-anus contact or whether Grace described to

Luna that Davis touched her genitals. Rather, Luna’s testimony shows

after interviewing Grace, she had an understanding from what Grace

7
told her of what sexual acts occurred, but exactly what Luna’s

understanding was from the interview was never specifically addressed.3

The State called Detective Staci Landor, an investigator employed

by the Beaumont Police Department, to explain why she charged Davis

with two offenses on which the grand jury’s indictments are based.

Detective Landor testified that she watched Grace’s interview with

Jennifer Luna on a closed-circuit television, which is located just outside

the room where the interview occurred. According to the detective, a

defendant may be charged with having committed a sexual offense in

different ways depending on the manner of penetration or touching and

depending on exactly what party of a person’s body the conduct occurs.

For that reason, Detective Landor explained, children need to be as clear

as possible in describing where they were touched. After the detective

provided that background about the importance of a clear explanation by

the child, the prosecutor asked:

Q. So, if the child alleges genital-to-anal contact, is that
sufficient for an aggravated sexual assault?
A. Yes.

3There were also no records of the Garth House interview of the

Garth House interview introduced into evidence in the trial, including
the recording of Grace’s interview.
8
Q. So, based on [Grace’s] interview, what charge did you
decide to file?
A. Aggravated sexual assault.

To be clear, however, Detective Landor never specifically testified that

she heard Grace tell Jennifer Luna during her interview at Garth House

that Davis touched her anus. Even so, Detective Landor explained that

based on what she heard in Grace’s interview, she moved forward with

the case and had a sexual assault examination performed on Grace. After

arranging for that to be done at St. Elizabeth Hospital, Detective Landor

explained that she obtained the paperwork from the hospital on Grace’s

exam, determined the explanation Grace provided at the Garth House

and the hospital were consistent about what occurred, and “move[d]

forward with the case.”

When Grace testified in the trial, she explained that when she was

five or six years old, Davis sometimes stayed at her home. But Grace said

she couldn’t recall whether Davis lived there. Turning to Grace’s

testimony about the alleged sexual assault that resulted in Davis’s

indictment, Grace testified that one night Davis was babysitting her and

her younger sister at their home. According to Grace, the three of them

were in the living room, Grace and Davis were watching television while
9
Grace’s sister was asleep in a chair, which reclined. Grace testified that

she was sitting on the floor and that when she “got sleepy,” she decided

to lie down on the couch even though Davis was already lying down.

While on the couch, Grace was lying on her side with Davis behind her.

Grace stated that she was wearing shorts and explained that was the two

of them were lying together on the couch:

I felt him like, you know, like – like when you, like, you know
– when you pull up your pants and stuff, you know, stuff like
that, and then I felt him touching my pants and stuff and I
asked him what he was he doing. He said he was fixing my
pants but I knew he wasn’t fixing my pants, but I was just
scared to, like, do anything.

Q. Okay. How did you know he wasn’t fixing your pants?
A. Because I felt it.
Q. When you say you felt it, what do you mean? What’s “it.”?
A. I felt he was touching me.
Q. Okay. What part of his body was he using to touch you?
A. His private part.
Q. Okay. How did you know it was his private part?
A. Because I felt it in my pants.
Q. It was inside your pants?
A. Yes, ma’am.
Q. Was it – were you wearing underwear that day?
A. Yes, ma’am.
Q. Was it inside your underwear?
A. I do not remember.
Q. Okay. You could feel it touching you?
A. yes, ma’am.
Q. Was it touching you on your skin?
A. Yes, ma’am – wait. I think so.
10
Q. Okay. Where was it touching you at?
A. On my butt.
Q. Like where the poop comes out on your butt.
A. No, ma’am?
A. Just like just like – just like right there.
Q. Okay. Like was it, like, on your butt cheek; or was it kind
of between your butt cheeks or –
A. On my butt cheek.
Q. Okay. And what was it doing?
A. Nothing.
Q. Nothing. Just touching?
A. Yes, ma’am.

Next, the prosecutor turned her attention to the information that

Detective Landor obtained in her investigation, which the State relied on

to charge Davis with indecency based on the act of touching Grace’s

genitals. The prosecutor approached the conduct alleged in the

indictment this way, asking Grace:

Q. What was - - was he doing anything else with any other
part of him?
A. No, ma’am.
Q. Was he touching you anyplace else?
A. I don’t remember, but probably no.
Q. Do you remember if he said he was doing anything with his
fingers before?
A. No, ma’am. Wait. What do you mean?
Q. Okay. Do you remember giving an interview with Ms. Luna
at the Garth House?
A. Yes, ma’am.
Q. And do you remember telling a nurse what happened at St.
Elizabeth?
A. Yes, ma’am.
11
Q. Okay. And at those time[s] - - those times it was awhile ago
that you were telling them, right?
A. Yes, ma’am.
Q. Was your memory more clear back then?
A. Yes, ma’am.
Q. So, if you told Ms. Luna that the Garth House or if you told
Ms. [Krummel] at St. Elizabeth that his fingers had been
touching you on your private spot, does that help you
remember?
A. A little bit.
Q. Do you remember today?
A. No, not all of it, just some of it because I kind of like don’t
want to think about it.
Q. Do you try to not think about it?
A. Yes, ma’am.
Q. Is it easier if it’s just not in your mind?
A. Uh-huh. Yes ma-am.

Syrena Krummel is the nurse who performed the sexual assault

exam on Grace in August 2019. Krummel testified that she is a registered

nurse who is also certified as a sexual assault nurse examiner and that

she has been employed by St. Elizabeth Hospital in that capacity since

2013.

Nurse Krummel explained that she obtained Grace’s medical

history “from the patient herself.” Grace was eight years old when the

SANE exam occurred. According to Krummel, Grace “gave a history of

vaginal penetration and rectal penetration.” On a ten-point scale, Grace

rated her pain at “9” for both the vaginal and rectal penetrations that she
12
described. Grace named Davis as her assailant. That day, Grace denied

any pain in her rectal and vaginal areas, but Grace rated her pain in

those areas “a 9 out of 10” when Davis assaulted her.

Nurse Krummel explained that Grace detailed the assault through

pictures and words. According to Krummel, Grace drew a picture that

shows Grace and Davis lying on a sofa with Davis lying behind her. In

describing the incident on the couch, Nurse Krummel’s report states:

And [Grace] said. What are you doing? And he said, I’m fixing
your pants. And as soon as I got up, my ride pulled up. You
know what boys use to use the restroom, that’s what he used.
He used it, put it in my pants. In one area (head buried in the
chair covered with a stuffed animal). My butt. (P[atien]t turns
the stuffed animal over and points to the area between his
legs to indicate where he had put “it.”). It hurt bad. So that’s
when I got up and my ride pulled up. On a scale of 1 to 10, 9.
I hold in my tears sometimes. He had on some pants and a
shirt like he always does. He started messing with my pants.
...
Forensic Nurse asked patient if anything else happened and
again she puts her head into the chair and states, “He started
like putting his fingers in my pants. Like in my front part.
And that’s when it started hurtin[g] really bad. He did the
fingers first. Then the butt. And when it started hurting really
bad that’s when I got up and saw his peepee. It looked nasty.

Turning to Nurse Krummel’s exam, she testified that she didn’t find

any injuries that were related to the penetrations Grace described. That

said, Nurse Krummel explained she wouldn’t have expected to find an
13
injury either because the incidents wouldn’t have resulted in injuries, or

had an injury occurred it would have healed before the exam was

performed.

After the State rested, Davis called no witnesses to testify in his

defense. The jury found that Davis was guilty of sexually assaulting

Grace, and indecency with a child based on the allegations in the

indictments. Based on the jury’s punishment verdict, the trial court

sentenced Davis to fifteen years’ imprisonment on the conviction for

sexually assaulting Grace and to five years’ imprisonment on the

conviction for indecency with a child. 4 The trial court further ordered that

Davis serve the sentences consecutively. 5

After the trial court signed the judgment, Davis moved for a new

trial, alleging that he received ineffective assistance of counsel because

4Aggravated sexual assault of a child by contact and indecency with

a child by contact are first and second-degree felonies, respectively. See
id. § 12.32(a) (stating the punishment range for first-degree felonies is
life in prison or any term not more than 99 years or less than 5 years), §
12.33(a) (stating the punishment range for second-degree felonies is no
more than 20 years or less than 2 years in prison).
5See id. § 3.03(b) (creating an exception to the general rule, a rule

that generally requires concurrent sentencing, that applies to the
offenses the jury found Davis committed and given that Grace was not
yet seventeen when the offenses occurred).
14
his attorney didn’t call any witnesses to testify in his defense. To support

his motion, Davis attached affidavits signed by six individuals. Generally

speaking, these affidavits show that Davis’s trial attorney knew the

names of these witnesses before Davis’s trial and knew that if called to

testify, they would vouch for Davis’s reputation, as the witnesses know

him as a person who has morals and a good character.

In response to the affidavits, Davis’s trial attorney filed an affidavit

explaining that he believed it would serve Davis better to develop

testimony from Rhonda and Ella than to call Davis’s friends and

members of his family to develop testimony that adults knew him to be a

good person and trusted him to be around their children. According to

Davis’s attorney:

At no point leading to [the] trial, did the maternal side of the
complainant[’s] family make any statements that were really
damaging to the defendant and their testimony went much to
what I anticipated. I was able to elicit testimony from the
complainant’s mother about her trust of the defendant, his
caretaking ability with her children, the relationship and
interactions of Mr. Davis and her children which lasted after
the allege[d]offense occurred. Even that she did not believe
[the] allegation when told to her by her daughter. I felt that
concentrating on this and bringing it to the jury’s attention in
this way would be more impactful than how it could be
perceived coming from members of his own family talking

15
about him with their children and also limit the possibilities
of opening the door to rebuttal evidence.

The trial court denied the motion and Davis appealed.

Is the evidence sufficient to support
each of Davis’s convictions?

Davis argues the State failed to meet its burden to prove its

allegations beyond reasonable doubt that he sexually assaulted Grace by

touching her anus with his penis or that he engaged in indecency with

her by touching Grace’s genitals. We examine claims that argue the

evidence is insufficient to support a finding of guilt under the standards

established in Jackson v. Virginia, 443 U.S. 307, 319 (1979). 6 Under

Jackson, we view the evidence in the light most favorable to the verdict

and determine whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. 7 “The jury

is the sole judge of credibility and weight to be attached to the testimony

of witnesses.” 8 Thus, the jury may choose to believe some, all, or none of

6See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
7Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing

Jackson, 443 U.S. at 318-19).
8Id.

16
the testimony that the parties present to it in the trial. 9 The jury may

also draw multiple reasonable inferences from the facts admitted into

evidence as long as each inference drawn from the evidence is supported

by the evidence admitted in the trial. 10 When the record supports

conflicting inferences, we presume the jury resolved those conflicts in

favor of its verdict, and we will defer to that determination. 11

In our review, we consider all evidence admitted in the trial,

whether or not it was properly admitted. 12 Circumstantial evidence is

just as probative as direct evidence of a defendant’s guilt, and

“‘circumstantial evidence alone can be sufficient to establish guilt.’”13

When the cumulative force of the incriminating circumstances allows the

jury to rationally infer the defendant committed the crime, the evidence

is still sufficient to support a conviction even though each fact doesn’t

directly point to the defendant’s guilt. 14 After deferring to the jury’s role

9Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
10Temple, 390 S.W.3d at 360.
11Id.
12Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
13Temple, 390 S.W.3d at 359 (quoting Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007)).
14Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)); Hooper, 214 S.W.3d at 13.
17
as the factfinder, we will uphold the verdict unless a rational factfinder

must have had reasonable doubt as to any of the essential elements of

the offense based on a hypothetically correct charge. 15

We turn first to Davis’s argument that the evidence is insufficient

to support his conviction for sexually assaulting Grace. In trial court

cause number 20-36118, the State was required to prove that (1) Davis

intentionally or knowingly (2) caused his sexual organ to contact (3)

Grace’s anus when (4) Grace was not yet fourteen years of age. 16 Since

the Penal Code doesn’t include a definition for the word contact, the jury

was free to assign the word “any meaning which is acceptable in common

parlance” in deciding whether the State proved that Davis’s penis

contacted Grace’s anus. 17

On appeal, Davis argues that Grace,

specifically recanted the hearsay statements of [Nurse
Krummel and Jenifer Luna] at the trial before the jury. Her
testimony to the jury describing the event was coherent and
detailed and clearly failed to describe the offense of
“aggravated sexual assault.” Nowhere in her testimony did

15SeeRamjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim.
App. 2018).

16Tex. Penal Code Ann. § 22.021(a)(1)(B)(iv), (a)(2)(B).
17Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012).

18
she claim that [Davis’s] sexual organ contacted her anus, but
merely touched her butt cheek and not even between her butt
cheeks.

We disagree with Davis that Grace recanted her prior statement,

as she never testified in the trial that she wasn’t telling Nurse Krummel

and Jennifer Luna the truth when they spoke to Grace in 2019 about

what Davis had done to her in 2016 when Grace would have been five

years old. When a witness says they can’t recall an event in a trial but

there is evidence before the jury that the witness did recall the event in

a statement made to others at some time before the trial occurred, it’s up

to the jury to decide whether it wants to believe what the witness said in

the earlier statement, even if it wasn’t made in a court. 18 Here, the jury

could have decided that Grace—an eleven-year-old child when the trial

occurred—just didn’t recall the details at trial but instead gave the

details to Nurse Krummel in 2019. Or the jury could have rationally

decided that Grace was too shy to tell the jury where exactly Davis

18Chambers, 805 S.W.2d at 461 (holding that “the complainant’s

recantation of her videotaped testimony did not destroy its probative
value”); Saldana v. State, 287 S.W.3d 43, 50 (Tex. App.—Corpus Christi
2008, pet. ref’d) (“A fact finder is fully entitled to disbelieve a witness’s
recantation.”).
19
touched her and with what parts of his body, but she did provide that

detailed information to a nurse a few years before in a medical setting

because the medical setting was more conducive to a child’s telling an

adult what occurred.

In reviewing the evidence, our role is not to reweigh the evidence

and then substitute our own opinion for that of the jury. 19 Rather, we

must defer to the jury’s role as it could have believed Grace told Nurse

Krummel the truth about what Davis did to her during the sexual assault

exam that Nurse Krummel performed in 2019. Stated another way,

Grace’s inability to provide the jury with the same detailed account she

gave Nurse Krummel in 2019 doesn’t destroy the probative value of the

account Grace gave Nurse Krummel in 2019 since the jury chose to rely

on that account in deciding whether the State had proved beyond

reasonable doubt that Davis sexually assaulted Grace. Consequently, the

jury could have rationally believed that Grace described what Davis did

to her and inferred from the information she provided to the nurse that

Davis caused Grace’s anus to contact his penis. Thus, the evidence

19Temple v. State, 390 S.W.3d at 360.

20
admitted in the trial supports the jury’s anus-to-penis contact finding—

the conduct proscribed by Penal Code section 22.021(a)(1)(B)(iv).

As to the remaining elements of the offense, Davis doesn’t dispute

that Grace was not yet fourteen when the alleged sexual assault

occurred. When viewed in the light most favorable to the prosecution,

Grace’s description of how Davis’s penis entered her pants also allowed

the jury to reasonably find beyond reasonable doubt that Davis engaged

in the conduct intentionally or that he did so knowing his penis would

contact Grace’s anus. We hold the evidence before the jury is sufficient to

support the elements of the offense the State had to prove to establish

Davis sexually assaulted Grace in trial court cause number 20-36118.

Next, we turn to Davis’s claim that the evidence is insufficient to

support his conviction for indecency with a child. In trial court cause

number 20-36119, the State was required to prove that (1) Davis

contacted Grace’s genitals (2) intending to arouse or gratify his sexual

desire (3) when Grace was not yet seventeen. 20

20Tex. Penal Code Ann. § 21.11(a)(1), (c)(1).

21
Davis argues the evidence cannot support his conviction for

indecency because “nowhere in her testimony did she claim that [Davis]

touched her genitals as alleged.” He notes that Grace’s testimony

“contradicted the claims of other witnesses that she had made a prior

inconsistent statement with her trial testimony. But Nurse Krummel’s

report and her testimony reflect that Grace told her that Davis put his

fingers in her pants, [l]ike her front part[,]” and that’s “when it started

hurting really bad[.]” Even though testimony about a vaginal penetration

wasn’t required to prove Davis committed the offense of indecency by

contact with Grace’s genitals, Nurse Krummel explained that with the

benefit of pictures and a stuffed toy, Grace “gave a history of vaginal

penetration[.]”

Viewing the evidence as a whole and in the light most favorable to

the prosecution, the jury could reconcile the inconsistencies in Grace’s

trial testimony and rely on the statement Grace provided to Nurse

Krummel in 2019. That statement allowed the jury to reasonably find

that Davis contacted Grace’s genitals. At trial, Grace never said that

what she told Nurse Krummel wasn’t true; instead, she told the jury that

her recollection of what happened to her in 2016 was better in 2019 when
22
she spoke to Nurse Krummel than it was when the trial occurred, which

was in July 2022. We conclude the discrepancies between Grace’s ability

to recall the events in 2022 and when Nurse Krummel examined her in

2019 do not destroy the probative value of the statement that she gave to

the nurse. 21

Davis doesn’t argue the evidence is insufficient to support the jury’s

findings on the remaining elements required to prove he was guilty of

indecency with a child. For instance, he doesn’t dispute that Grace was

not yet seventeen when the offense occurred. He also doesn’t argue that

the evidence doesn’t support the jury’s finding that his purpose in

touching Grace’s genitals was to arouse his sexual desire, as no other

evidence in the trial shows that he had another purpose for touching her

there. We hold the evidence is sufficient to support the jury’s finding

convicting Davis of indecency with a child in trial court cause number 20-

36119.

21Chambers, 805 S.W.2d at 461.

23
Did Davis establish that he received
the ineffective assistance of trial counsel?

Davis’s remaining issue, which is raised in both appeals, contends

Davis received ineffective assistance of counsel in the guilt-innocence

phase of his trial. The right to effective assistance of counsel is

guaranteed by the United States and Texas Constitutions. 22 That right

necessarily includes the right to reasonably effective assistance of

counsel. 23 To prevail on a claim of ineffective assistance, however, a

defendant must prove (1) counsel’s representation fell below an objective

standard of reasonableness, and (2) a reasonable probability that, but for

counsel’s deficiency, the result of the proceeding would have been

different. 24

To prove deficient performance, the defendant must prove by a

preponderance of the evidence that his attorney’s performance fell below

an objective standard of reasonableness. 25 There is a “strong presumption

22U.S. CONST. amend. VI; Tex. Const. art. I, § 10.
23See Strickland v. Washington, 466 U.S. 668, 685-86 (1984);
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying
the Strickland standard to ineffective-assistance-of-counsel claims under
the Texas Constitution).
24See Strickland, 466 U.S. at 687-88; Hernandez, 726 S.W.2d at 55.
25Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

24
that counsel’s conduct fell within the wide range of reasonable

professional assistance.” 26 Therefore, to overcome the presumption, any

allegation of ineffectiveness must be firmly grounded in the record so that

the record affirmatively demonstrates no plausible professional reason

for counsel’s specific acts or omissions. 27

Davis argues he received ineffective assistance in the guilt-

innocence phase because the attorney who represented him in his trial

failed to call witnesses who were “ready, willing, and available to testify

on his behalf.” As mentioned, an attorney on Davis’s behalf moved for a

new trial, supporting the motion with six affidavits that were signed

either by members of Davis’s family or his friends. 28 The attorney who

represented Davis in the trial responded with an affidavit of his own, and

26See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)

(citing Strickland, 466 U.S. at 689).
27Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017).
28We note that the motion for new trial was not filed by the attorney

the trial court appointed to represent Davis in his trial or by the attorney
the trial court appointed to represent Davis in his appeal. Nonetheless,
the trial court denied the motion, even though the docket sheet doesn’t
show the trial court ever recognized that the attorney who signed the
motion for new trial was Davis’s attorney of record. Nonetheless, since
the trial court ruled on it, we consider the motion is properly before us
for the purposes of Davis’s appeal.
25
it contains the reasons that Davis’s trial attorney chose not to call the

individuals who signed the affidavits as witnesses in the guilt-innocence

phase of Davis’s trial. Boiled down, the affidavit filed by Davis’s trial

attorney shows that he thought he could elicit favorable testimony about

Davis’s character through Grace’s mother and grandmother. That

strategy was designed to allow the jury to hear about Davis’s character

from Rhonda and Ella, the adults who had allowed Davis to live in their

home because they trusted him around children. The advantage of the

strategy was that it eliminated the risk of calling witnesses who might

have information damaging to Davis’s reputation while allowing the jury

to hear that the adults living with Davis in the home trusted him around

Grace and Grace’s sister the entire time he lived there.

Davis’s trial attorney successfully elicited favorable testimony from

Grace’s mother (Rhonda) and Grace’s grandmother (Ella) in the trial.

Both testified that when Davis lived with them, they never saw Davis act

inappropriately while around Grace. Rhonda testified that Grace loved

being around Davis and that before Davis came to their home in 2019

and she found Grace crying, Grace never seemed uncomfortable when

Davis was around. Ella testified that when Davis was around Grace, she
26
trusted him and that before the incident in 2019, she had never viewed

Davis as a threat.

The information in the six affidavits that Davis claims he wanted

to introduce about his good character is similar to the evidence his trial

attorney elicited in the trial from Rhonda and Ella. 29 Davis’s trial

attorney also offered a reasonable basis grounded in trial strategy for not

calling the witnesses that signed the affidavits since by not calling them

he eliminated his client’s risk of opening the door to evidence that might

have been adverse to Davis’s defense. 30

Davis also argues that his attorney was ineffective because he failed

to call a man named Jack Garrett to testify that Rhonda had falsely

accused him of sexually assaulting her. Yet Davis’s trial attorney

explained why he didn’t call Garrett in his affidavit and why he believed

that strategy would either fail or “cause more harm than good.” According

29See Ex parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006)

(When unadmitted mitigating evidence is similar to admitted evidence,
a defendant is unlikely to show that the unadmitted evidence would have
“tipped the scale” in his favor.).
30See Ex parte Ruiz, 543 S.W.3d 805, 821 (Tex. Crim. App. 2016)

(“Weighing the advantages and disadvantages of calling a particular
witness to testify is a matter usually left within the province of trial
counsel’s discretion.”).
27
to Davis’s trial attorney’s affidavit, had the trial court allowed testimony

about Garrett’s alleged assault, Rhonda would have had to admit that

Garrett denied engaging in the acts that Rhonda described and to admit

he was never charged with a crime. Davis’s trial attorney concluded that

“nothing [is] clear cut that would show that [Garrett] was lied on. I felt

putting a lot of energy into this theory would be chasing a ‘red herring.’”

To prove a claim of ineffective assistance of counsel, the defendant

must prove the attorney who represented the defendant performed

deficiently and the defendant suffered prejudice as a result. 31 Courts

must measure whether the attorney was ineffective using an objective

standard of reasonableness, which turns on whether the attorney

represented the defendant in a manner that fell below the prevailing

professional norms. 32 Different attorneys may reasonably make different

choices in handling a defendant’s case and the attorney’s and the client’s

choices in a particular case usually involve matters of trial strategy.33

31Strickland, 466 U.S. at 687; Ex parte Bowman, 533 S.W.337, 349

(Tex. Crim App. 2017); Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim.
App 2016).
32Id.
33Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim. App. 2013); see

also Strickland, 466 U.S. at 689; Bowman, 533 S.W.3d at 349.
28
Consequently, the standard by which an attorney’s representation is

measured recognizes the wide range of reasonable professional

assistance that exists, so appellate courts indulge in a strong

presumption that favors the attorney whose advice is the subject of a

defendant’s ineffective assistance claim. 34

In deciding whether Davis was entitled to a new trial, the trial court

could have reasonably concluded that for reasons of trial strategy, the

attorney who represented Davis chose not to call the six character

witnesses who signed the affidavits that were used to support Davis’s

motion. The record shows Davis’s trial attorney developed evidence

favorable to Davis’s character through Grace’s mother and Grace’s

grandmother during the trial. The trial court could also reasonably

conclude that not calling Jack Garrett to testify was a reasonable choice

as a matter of trial strategy, so not calling Garrett isn’t conduct that

amounts to ineffective assistance of counsel. 35 We hold the trial court did

not abuse its discretion in denying Davis’s motion for new trial.

34Id.
35See id.

29
Conclusion

We overrule the issues Davis raises in his two appeals. We affirm

the trial court’s judgments in trial court cause numbers 20-36118 and 20-

36119.

AFFIRMED.

HOLLIS HORTON
Justice

Submitted on August 1, 2023
Opinion Delivered October 11, 2023
Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

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