Summary
The Fourth Court of Appeals of Texas affirmed Ronald Diaz-Perez’s convictions for two counts of continuous sexual abuse of a child and concurrent ninety-nine-year sentences. The court rejected his ineffective-assistance claims concerning expert testimony and held that any error in admitting outcry testimony was harmless because the same fact was admitted through the complainant’s unobjected-to testimony.
Topics
Practice areas
Questions Presented
- Whether trial counsel rendered ineffective assistance by failing to call an expert witness to rebut the State's pediatric expert.
- Whether trial counsel rendered ineffective assistance by failing to request funds to hire an expert witness.
- Whether the trial court reversibly erred by admitting the outcry witness's testimony concerning Maria's report of penile penetration when that allegation was not included in the State's written outcry summary.
Holdings
- The ineffective-assistance claim failed because Diaz-Perez did not show that an expert was available, what the expert would have testified to, or how the testimony would have benefited the defense.
- The ineffective-assistance claim based on counsel's failure to request funds for an expert witness failed because Diaz-Perez did not demonstrate that the proposed expert's testimony would have benefited the defense.
- Any error in admitting the mother's testimony that Maria reported penile penetration was harmless because Maria subsequently testified to the same fact without objection.
Key quotations
“A silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance.” (at 3)
“Because Maria’s testimony establishing the same fact was admitted without objection, any error in admitting Mother’s testimony was harmless.” (at 5)
Factual background
Diaz-Perez's daughters testified that during court-ordered visitation he sexually abused them. Their mother testified as the outcry witness concerning statements Maria made about the abuse, including penile penetration, although the State's written summary did not include that particular allegation. A pediatrician testified that normal examinations months after the alleged abuse were consistent with the passage of time and possible healing. Diaz-Perez argued that defense counsel should have called or obtained funds for an expert to rebut that testimony.
Procedural history
A jury convicted Diaz-Perez on two counts of continuous sexual abuse of a child. The trial court assessed concurrent ninety-nine-year sentences. On direct appeal, Diaz-Perez challenged trial counsel's failure to call or seek funds for an expert witness and challenged the admission of outcry testimony concerning penile penetration. The court of appeals overruled all three issues and affirmed.