Arrington, Charles, PD-0756-15

Background

Charles Arrington was tried in Bexar County for multiple counts of aggravated sexual assault of a child and one count of indecency; jury convicted on six counts and sentenced to lengthy terms. The jury was unable to reach a verdict on one count.
The prosecution’s case relied primarily on the child complainant’s testimony; no medical or physical evidence tied Arrington to the offenses (a classic credibility-driven case).
At trial the State elicited testimony from the school counselor (Lisa McGinnis) about why she believed the child’s outcry and from the child’s mother (Virginia Johnson) that the child told her the truth; defense counsel made no objections to those questions or answers.
On initial appeal the Fourth Court of Appeals reversed based on lack of unanimity instruction and also found McGinnis’s credibility opinion inadmissible; the Court of Criminal Appeals reversed the reversal and remanded for consideration of the remaining issues.
On remand the Fourth Court of Appeals affirmed the convictions, holding (1) the absence of a unanimity instruction did not establish federal fundamental error and (2) defense counsel’s failures to object could be explained as conceivable trial strategy, so ineffective-assistance claims failed on the cold record.

Issues

Issue	Appellant's Argument	State / Respondent's Argument	Held
Whether trial court’s failure to give a unanimity instruction required automatic reversal (due process)	Unanimity omission deprived Arrington of a fair trial because jurors could convict based on non‑identical acts; reversible error.	Federal law does not require unanimous verdicts in state noncapital prosecutions; error does not automatically mandate reversal.	Court held lack of unanimity instruction did not amount to federal fundamental error; affirmed on that point.
Whether defense counsel was ineffective for failing to object when the school counselor gave opinions about the truthfulness of the complainant (expert‑type credibility opinion)	Counsel’s complete failure to object to repeated expert‑style testimony on complainant’s truthfulness was so outrageous it could not be reasonable strategy and is reviewable on direct appeal.	On the cold record some conceivable strategy existed (avoid emphasizing the matter, limited cross‑examination); where any imaginable strategy exists appellate courts will not find deficient performance.	Court held appellant failed to show counsel’s performance was so deficient that no competent attorney would have acted similarly; ineffective‑assistance claim denied.
Whether defense counsel was ineffective for failing to object to the mother’s testimony that the child “tells me the truth” (lay bolstering)	Mother’s statements directly bolstered the complainant’s credibility in contravention of Tex. R. Evid. 608; defense counsel’s failure to object was unreasonable and prejudicial.	Mother’s comments were brief and vague; counsel may have declined to object to avoid highlighting the testimony.	Court held the testimony was brief/vague and counsel could have had a conceivable strategy; ineffective‑assistance claim denied.

Key Cases Cited

Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015) (Court of Criminal Appeals reversed the appellate court’s reversal and remanded remaining issues)
Arrington v. State, 413 S.W.3d 106 (Tex. App.—San Antonio 2013) (original Fourth Court of Appeals opinion reversing for unanimity instruction error)
Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) (expert may not give a direct opinion on the truthfulness of a complainant)
Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997) (limitations on expert testimony about witness credibility and character evidence)
Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) (appellate standard on assuming strategic motivation when record is silent)