Teddy Hickman, Appellant v. The State of Texas, Appellee

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Court of Appeals of Texas, Amarillo.

Teddy Hickman, Appellant v. The State of Texas, Appellee

No. 07–14–00193–CR

Decided: February 24, 2016



Teddy Hickman appeals his conviction for indecency with a child by contact.  Through three issues, he contends that the trial court erred in 1) denying his motion for new trial wherein he alleged he was denied the effective assistance of counsel, 2) denying his motion for mistrial after the State impermissibly struck at him over the shoulders of his counsel during summation, and 3) denying him the opportunity to confront the complaining witness via the presentation of evidence concerning her prior sexual conduct.  We affirm.


The jury heard evidence of appellant inviting the victim, a twelve year old female, to sleep in his bed with him.  The invitation was purportedly extended because the home in which they were sleeping had become smoky due to a closed chimney damper.  At the time, the victim's mother and appellant were pursuing a dating relationship after having been married to and divorced from each other.  And, though the victim's mother was present earlier that evening, she left with appellant's mother to go “Black Friday” shopping.

According to the victim, appellant proceeded to rub her back and fondle her breasts as they lay in bed.  Eventually, he gripped her hand, rubbed it against his chest and stomach area and moved it to his penis.  After contacting his penis, she moved her hand away.  Appellant then attempted to sooth her by saying that the event was but a dream.

In time, the State indicted appellant and accused him of two counts of indecency with the child.  One encompassed the purported touching of the victim's breasts while the other encompassed the victim's touching appellant's genitalia.  The jury acquitted appellant of the former but convicted him of the latter.

 Issue One—Ineffective Assistance of Counsel

In his first point of error, appellant urged that he was denied effective assistance of counsel because his attorney failed to object when 1) an expert witness (Sanchez) purported to vouch for the truthfulness of the victim, and 2) the same witness was asked to apply general concepts to the specific facts of the case at hand.  We overrule the issue.

Given that the topic arose via a motion for new trial denied by the trial court, the standard of review is one of abused discretion.  Coyler v. State, 428 S.W.3d 117, 122 (Tex.Crim.App.2014).  Under that standard:

[w]e review a trial judge's denial of a motion for new trial under an abuse of discretion standard.  ‘We do not substitute our judgment for that of the trial court;  rather, we decide whether the trial court's decision was arbitrary or unreasonable.’  A trial judge abuses his discretion in denying a motion for new trial when no reasonable view of the record could support his ruling.  We view the evidence in the light most favorable to the trial judge's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party.

Coyler, 428 S.W.3d at 122, quoting, Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006).

In applying that standard, we must also heed several other rules.  The first tells us that when the purported ineffectiveness involves counsel's failure to object to evidence, the appellant must show that the trial court would have abused its discretion in admitting the evidence if an objection were made in a timely manner.  Rodriguez v. State, 459 S.W.3d 184, 193 (Tex. App–Amarillo 2015, pet. ref'd) (stating that “when alleging ineffective assistance of counsel for failure to object, an appellant must demonstrate that the trial court would have erred in overruling an objection, if trial counsel had made one”).  Second, inadmissible evidence may be rendered admissible when a party opens the door to its admission.  Williams v. State, 301 S.W.3d 675, 687 (Tex.Crim.App.2009).  One way to open that door is by a party leaving a false impression with the jury that invites the other side to respond.  Hayden v. State, 296 S.W.3d 549, 554 (Tex.Crim.App.2009).

Third, expert testimony constituting a direct opinion on the truthfulness of a child complainant generally is inadmissible.  Cantu v. State, 366 S.W.3d 771, 777 (Tex.App.–Amarillo 2012, no pet.).  However, expert testimony that a child did not exhibit indications of coaching or manipulation is not an opinion on the child's truthfulness.  Id. Therefore, it may be admissible.  Id.

Fourth, where counsel's performance is defective, the defect must still be prejudicial.  That is, the claimant must illustrate a “reasonable probability” that the result of the proceeding would have been different if counsel had not been deficient.  Ex parte Bryant, 448 S.W.3d 29, 40 (Tex.Crim.App.2014).  Such a probability arises when the defect undermines our confidence in the outcome of the trial.  Id. And, whether there is a reasonable probability that such confidence is undermined may turn on the evidence presented at trial.  Id. This is so because a verdict having only weak evidentiary support is more likely to have been affected by errors than one with overwhelming support.  Id.

We now turn to the circumstances at bar.  Appellant's counsel called Sanchez to testify.  She happened to be the person who interviewed the victim.  Furthermore, the tenor of his questioning pertained to the manner in which one interviews children allegedly subjected to abuse, how interviewing techniques or questions can affect the child's recall of events, the effect of time on a child's memory of events, and a child's potential susceptibility to suggestion or manipulation by others.  For example, defense counsel asked the witness:  1) “if you say something to a child that shows that you don't like a person, that you're angry, that they're evil and then suggest to the child that, ‘they've done something wrong, haven't they,’ that would be a leading, suggestive way of interviewing”;  2) “you hope, in a perfect world, that when you receive a report like you received, that a trained person is the first person that gets to interview them;  is that correct”;  3) “if you have a delayed report, and an untrained person might go over with them their story in a suggestive, leading way many times before they ever get to you;  isn't that true”;  and, 4) “on occasion, by the time they get to you, the damage has already been done by the leading and suggestive questioning?”  To those questions, the witness answered in the affirmative.

In response, the State asked the witness about the procedures she used in preparing the victim at bar for the interview and whether there was any indication that the type of manipulation or questioning mentioned above had occurred.  She denied having such indication.  And, after being again asked if she received “any indications of any issues with [the victim] in this particular case,” the witness replied that she “had no reason to believe that she [the victim] was lying.”  It is these answers to the State's questions which should have caused his counsel to object, according to appellant.  And, in withholding objection, counsel was allegedly deficient.1

We divide the questioned events into two categories.  The first involves questions and answers about interviewing, interviewing techniques, and manipulation.  The second involves the witness' answer lacking indication that the child was “lying.”  With regard to the former, we reiterate that experts may be asked about whether the child exhibited indications of coercion or manipulation.  Cantu v. State, supra.  And, that was the tenor of those questions propounded by the State to Sanchez and her answer to them.  It asked her whether she saw any indication of the child being manipulated, coerced, and the like, and she denied the presence of such indicators.

Moreover, it cannot reasonably be denied that the State's questions were invited by the tenor of questioning by defense counsel.  The latter had raised the specter of the child at bar having been manipulated by others or having changed her version of the events.  Indeed, the “hypothetical” he posed to the witness did just that.  It tracked critical circumstances of the case being tried.  Those circumstances related to the quantum of time that lapsed between the event and the victim disclosing its occurrence and the purported condition of appellant's penis.  It may well be that defense counsel prefaced his factual scenario as a “hypothetical,” but one need not assume that the witness and jurors lacked the wherewithal to realize that counsel was referring to the case at hand.  Consequently, the trial court had before it circumstances upon which it could have reasonably relied in deciding that defense counsel opened the door or effectively invited the State to question Sanchez as it did.

Whether the event can be interpreted as simply delving into areas permitted under Cantu or as the State stepping through a door opened by defense counsel, we cannot say that the trial court was obligated to sustain an objection had one been made.  It had the discretion to legitimately permit such evidence and questioning under the circumstances.

As for the witness' comment about the lacking any reason to believe the child was “lying,” that is a bit more problematic.  Admittedly, the word “lying” was used, as opposed to simply reiterating that there were no indications of coercion or manipulation.  And, because “lying” is the converse of being truthful, it may be that one could interpret the answer as suggesting the child was being truthful.  So, it may well have been subject to legitimate objection.  Yet, we cannot ignore the fact that Sanchez did not say the child was not lying.  Nor did she say that the child was being truthful.  Instead, she said that she had no reason to believe she was lying, and that relates to her perception of indicators akin to those of manipulation or coercion.  And the ambiguity of the situation could well have been the reason why defense counsel later informed the trial judge that he “did not object to that because, frankly, I didn't—it wasn't clear to me that she was expressing an opinion as to truthfulness.”

Nonetheless, and assuming that the comment was an expression of opinion regarding truthfulness, its context suggests that the utterance was an unresponsive answer to the State's question.  The prosecutor had simply asked again:  “you didn't get any indications of any issues with [the victim] in this particular case” when the witness answered as she did.  Furthermore, the answer was not repeated elsewhere, and it appeared amid a general discussion of admissible evidence that also tended to encompass the child's credibility and accuracy.

Admittedly, the jury would later ask to see the testimony of Sanchez as it pertained to the “truthfulness” of the victim.  The reason for requesting it concerned “a disagreement about accuracy.”  Apparently, the jurors could disagree on aspects of what she said.  Yet, that body also asked for the testimony of others, including that of the victim, the victim's mother, and appellant.  So too did it solicit exhibits.  And, as discussed above, much of what the witness said constituted admissible evidence which also happened to indirectly touch upon credibility.

Of further note is the decision of the jury.  The State indicted appellant on two counts.  But, the jury convicted him of only one, despite the victim having testified to the occurrence of both.  Had the jury been swayed by Sanchez' supposed utterances about the victim being credible, one is left to wonder why it failed to convict him of both crimes.  This suggests that Sanchez' testimony was not necessarily as influential as appellant would have us believe.  Indeed, the jury had a plethora of information before it comprising multiple volumes of the reporter's record.  Part of that information included appellant's own admission that he invited the female child to his bed and that the child ultimately fondled his genitalia while they lay together.

To that we add the rather strenuous defense proffered by appellant's trial counsel.  Indeed, two attorneys participated in the trial on his behalf.  Not only were the State's witnesses thoroughly examined by defense counsel but they also called witnesses in appellant's defense.  Objections were often lodged and cogent argument proffered by defense counsel during the rather extended trial on guilt and innocence.  So too did counsel develop and actively pursue a strategic defense focusing on appellant's inability to do what he was accused of given a recent illness and the victim's lack of credibility.  Though such aggressive activity by defense counsel is often considered in relation to whether the actions of counsel were deficient (i.e., the first prong of the ineffectiveness test), see Ex parte Lahood, 401 S.W.3d 3d 45, 49–50 (Tex.Crim.App.2013) (holding that the totality of counsel's representation normally is determinative of whether counsel rendered ineffective assistance), we see no reason why it should not factor into whether confidence in the outcome of the trial is undermined (i.e., the second prong of the test relating to prejudice).  And, given the rather large quantum of data presented to the jury through twenty-four witnesses, defense counsel's overall performance, and the jury's obvious critical analysis of that evidence (in view of its verdicts), we cannot say that the failure of defense counsel to object to Sanchez' statement about having no reason to believe the victim was lying undermines our confidence in the outcome of the trial.  In short, the purported deficiency did not prejudice appellant given the totality of the representation afforded him.

 Issue Two–Striking at the Defendant

In his second issue, appellant contends that the trial court erred in denying his motion for mistrial after the State impermissibly struck at appellant over the shoulders of his counsel during closing arguments.  Such occurred, according to appellant, when the prosecutor said, during summation, that his opponents “muddied the waters” “[b]ecause they do not believe their client.”  An objection to the comment was lodged and sustained by the trial court.  So too did the court instruct the jury to disregard it.  However, it did not grant appellant's request for a mistrial.  In so refusing, the trial court purportedly erred.  We overrule the issue.

The decision to deny a mistrial is reviewed under the standard of abused discretion.  Gallo v. State, 239 S.W.3d 757, 775 (Tex.Crim.App.2007).  What is meant by that standard was previously discussed and need not be reiterated.

Furthermore, mistrial is an extreme remedy for prejudicial events and should be exceedingly uncommon.  Gaither v. State, 383 S.W.3d 550, 556 (Tex.App.–Amarillo 2012, no pet).  It is appropriate for only highly prejudicial and incurable errors.  Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003).  That is, the impropriety must be so prejudicial that the expenditure of further time and expense in continuing the trial would be wasteful and futile.  Id. It must be clearly calculated to inflame the minds of the jury and be of such character as to suggest the impossibility of withdrawing the impression left in the minds of the jury.  Gaither, 383 S.W.3d at 556.  In most instances, though, an instruction to disregard the remark will cure the error;  indeed, we generally presume that it cured the impropriety.  Id. And, in deciding whether the event was so harmful as to warrant a mistrial, we consider its prejudicial effect, the curative measures taken, and the certainty of conviction absent the prejudicial event.  Id.

For purposes of this argument, we assume arguendo that the prosecutor's comment was improper.  So too do we assume that it had the potential to adversely prejudice appellant.  Yet, it was not repeated, and the trial court instructed the jury to disregard it.  That instruction was not the only one afforded by the court.  Via its charge it also directed the jurors to consider only the evidence and that comments by the lawyers were not evidence.  And, while the issue of credibility weighed heavily at trial and the comment touched upon that topic, the ultimate verdict rendered by the jury tends to dispel the notion that the comment necessarily influenced that deliberative body.  Again, it found appellant guilty only of one count despite his being charged with and having evidence before it of two crimes.  That the jury asked to see numerous excerpts of testimony from differing witnesses upon retiring to deliberate also suggests that it heeded its duty to consider all the evidence, not just comments by the parties.  In short, we cannot say that the prejudice arising from the comment was so egregious as to be incurable by the trial court's instruction to disregard.

 Issue Three—Denial of Right to Confront

In his final issue, appellant argues that the trial court erred in denying him the right to confront the victim regarding her prior sexual conduct.  We overrule the issue.

The decision to exclude evidence is reviewed under the standard of abused discretion.  Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010).  Because we presume the trial court's ruling is correct, the burden lies with the appellant to establish the contrary.  Longoria v. State, No. 13–12–00333–CR, 2013 Tex.App. LEXIS 11571, at *21–22 (Tex.App.–Corpus Christi September 12, 2013, pet. ref'd) (mem. op., not designated for publication);  Jensen v. State, 66 S.W.3d 528, 545 (Tex.App.–Houston [14th Dist.] 2002, pet. ref'd).  Implicit within that burden lays the obligation to address all grounds upon which the ruling was based.  Indeed, if all grounds were not shown to be deficient then it can hardly be said that the appellant succeeded in rebutting the presumption of accuracy afforded the decision.

Below, the trial court and attorneys debated the matter of permitting appellant to delve into the twelve year old victim's prior sexual conduct.  Included within the debate were discussions touching upon the constitutional right to confront witnesses and the scope of Texas Rule of Evidence 412.2  In deciding to bar appellant's effort, the trial court mentioned several reasons to support its decision.  One pertained to its belief that “the prejudicial effect could outweigh the probative value in this particular instance because of the tenuous nature of those relationships.”  Such concern is a legitimate consideration and may indeed supersede an appellant's Sixth Amendment right to confront his accusers.  See Allen v. State, 700 S.W.2d 924, 932 (Tex.Crim.App.1985) (recognizing that the right to confront adverse witnesses is fundamental and of such importance that a State's interest in protecting a certain class of witnesses from embarrassment may fall before it but also recognizing that the potential for undue embarrassment and stating that the defendant “may be given an opportunity to demonstrate that due process requires the admission of such evidence because probative value in the context of that particular case outweighs its prejudicial effect on the prosecutrix”).  In other words, invoking the Sixth Amendment does not ipso facto require the admission of evidence concerning prior sexual activity.  The probative value of that evidence may still be weighed against its prejudicial value, and if the former does not outweigh the latter, the evidence may be excluded.  We say this only to highlight the need for appellant to address that aspect of the trial court's reasoning, and he did not.  While he argued that Rule 412 is inapplicable and that he had a right to confront the victim, he did not attempt to illustrate why the evidence was admissible because its probative value outweighed its prejudicial effect under either Rule 412 or Texas Rule of Evidence 403.3  Consequently, he failed to carry his burden of illustrating that the trial court's decision was incorrect.

Having overruled appellant's issues, we affirm the judgment of the trial court.


1.   Via an affidavit attached to a motion for new trial, defense counsel stated that his failure to object was not part of any trial strategy but merely an omission.

2.   Texas Rule of Evidence 412(a) states:  “The following evidence is not admissible in a prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault:  (1) reputation or opinion evidence of a victim's past sexual behavior;  or (2) specific instances of a victim's past sexual behavior.”

3.   Texas Rule of Evidence 403 states:  “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:  unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Brian Quinn, Chief Justice

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