v.
State
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00059-CR
MICHAEL WAYNE BELLAR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 222nd District Court, Oldham County, Texas Trial Court No. OCR-16A-001, Honorable Kent Birdsong, Presiding
November 16, 2018
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Michael Wayne Bellar appeals his conviction for indecency with a child.[1] Two issues pend for our review. The first concerns the sufficiency of the evidence to support the conviction and the second, the alleged ineffectiveness of his trial attorney. We affirm.
[*2]A person commits indecency with a child when, with a child younger than 17 years old, the person, with intent to arouse or gratify the sexual desire of any person causes the child to expose the child’s genitals. TEX. PENAL CODE ANN. § 21.11(a)(2)(B) (West Supp. 2018). The evidence we mentioned above is evidence upon which a rational fact-finder could find, beyond reasonable doubt, that appellant committed the offense of indecency with a child. See Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018) (stating that when assessing the sufficiency of the evidence to support a conviction, the reviewing court considers whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). That appellant may have denied it or thought it geometrically impossible to peer down his granddaughter’s underwear when sitting on the bed simply created a fact dispute for the jury to decide. We cannot interfere with the manner in which it resolved that dispute. See id. (stating that the standard of review requires an appellate court to defer to the fact-finder’s responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts).
Issue Two – Ineffective Assistance
Next, appellant contends that he was denied the effective assistance of counsel because his trial attorney did not object to two instances of purported bolstering. We overrule the issue.
To succeed on a claim of ineffective assistance, the appellant must prove by a preponderance of the evidence that his counsel’s performance was deficient and that the deficiency prejudiced his defense. Prine v. State, 537 S.W.3d 113, 116-17 (Tex. Crim.
[*3]App. 2017); Sauseda v. State, No. 07-17-00100-CR, 2018 Tex. App. LEXIS 7811, at *3-
4 (Tex. App.—Amarillo Sept. 25, 2018, no pet. h.) (mem. op., not designated for publication). The failure to establish one or the other element results in the rejection of the claim. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
Illustrating prejudice requires the complainant to show that there was a reasonable probability that but for the deficient performance, the result would have differed. Id. Here, appellant argues that if trial counsel had objected to the purported evidence of bolstering, the jury would not have heard the inflammatory and prejudicial evidence from the State’s expert witness. He did not attempt to explain how the outcome would have differed, whether the difference be in the finding of guilt or the sentence imposed. Indeed, he did not even posit that there would have been a different outcome. Having failed to address the prejudice element of the test, he did not establish his entitlement to relief. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999) (holding that because the appellant made no effort to illustrate prejudice, the omission precluded any relief). Thus, we need not decide whether trial counsel’s performance was deficient. Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), when stating that “‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed’”).
We overrule appellant’s issues and affirm the judgment.
Brian Quinn Chief Justice Do not publish.
[*4]