Robert D. Maxwell v. State, 08-14-00028-CR

Background

Appellant Robert D. Maxwell was tried (jointly with a companion case) on multiple counts of indecency with a child; the State proceeded to verdict on two counts involving complainant H.S.; jury found Appellant guilty on both counts and assessed five-year sentences.
Complaints arose from multiple types of incidents: repeated ‘‘parking lot’’ masturbation/exposure events involving M.E., pool ‘‘scooping’’ (breast touching) incidents, and ‘‘mudding’’ trips where Appellant allegedly grabbed H.S.’s breast and masturbated in front of the girls.
M.E. and H.S. both testified; M.E. admitted she once lied to a friend that Appellant raped her but later disclosed the incidents; a neighbor (Maddox) corroborated M.E.’s account and reported M.E.’s disclosure to family members leading to police notification.
Appellant sought to elicit testimony (from M.E.’s father) about a prior Nebraska allegation by M.E. (that a relative engaged in an "inappropriate" sexual conversation) to impeach M.E.’s credibility; the trial court excluded that evidence.
On cross-examination of the State’s forensic interviewer (Ms. Kemp), defense counsel elicited testimony that only about 2–3% of similar forensic interviews were false outcries; Appellant later argued this was inadmissible expert testimony and constituted ineffective assistance of counsel.
Appellant also argued the trial court erred by failing to give a specific unanimity instruction identifying which discrete incident(s) the jury must unanimously accept for each count; the charge instead had a general unanimity directive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of impeachment evidence (Nebraska allegation)	Excluding prior Nebraska accusation prevented Appellant from showing M.E. had motive to fabricate and undermined her credibility	Evidence was collateral to H.S.’s charges and exclusion did not harm Appellant’s case regarding H.S.	Trial court did not err; exclusion harmless as to H.S.; issue overruled
Ineffective assistance for eliciting expert truthfulness statistic	(N/A) — appellant argues counsel’s elicitation of inadmissible expert opinion about truthfulness class was deficient	Defense contends counsel’s questioning could be legitimate strategy (e.g., suggesting custody-motivated false outcries); record undeveloped	Strickland not satisfied; counsel’s conduct could be strategic; issue overruled
Jury unanimity instruction	Appellant contends State presented multiple separate incidents and court should have instructed jury to unanimously agree on a single incident per count	Trial court gave a general unanimity instruction; defense argued different incidents (mudding vs. swimming) in closing so jurors could reach unanimous findings for two distinct counts	No charge error found; general instruction adequate here because the evidence supported the jury returning unanimous verdicts as to discrete incidents per count; issue overruled

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two-prong ineffective assistance standard)
Ex parte Chandler, 182 S.W.3d 350 (application of Strickland in Texas)
Mallett v. State, 65 S.W.3d 59 (presumption that counsel’s performance is within a wide range of reasonable assistance)
Thompson v. State, 9 S.W.3d 808 (ineffective-assistance claims must be firmly founded in the record)
Mitchell v. State, 68 S.W.3d 640 (defining Strickland performance and prejudice analysis)
Perez v. State, 310 S.W.3d 890 (failure to satisfy either Strickland prong defeats claim)
Yount v. State, 872 S.W.2d 706 (expert testimony on witness truthfulness is inadmissible)
Cosio v. State, 353 S.W.3d 766 (unanimity requirement and instruction when State presents multiple separate incidents)
Jourdan v. State, 428 S.W.3d 86 (jury must be unanimous on every element)
Stuhler v. State, 218 S.W.3d 706 (unanimity requires agreement on a single discrete incident)
Almanza v. State, 686 S.W.2d 157 (jury-charge error analysis and harm standard)
Ngo v. State, 175 S.W.3d 738 (Almanza two-pronged review applied)
Neal v. State, 256 S.W.3d 264 (preservation and harm analysis for charge errors)
Fuller v. State, 224 S.W.3d 823 (ineffective-assistance claims where counsel failed to object to inadmissible expert truth testimony)
Sessums v. State, 129 S.W.3d 242 (cases finding counsel ineffective for not objecting to expert truthfulness testimony)
Miller v. State, 757 S.W.2d 880 (inadmissible testimony regarding truthfulness should be objected to)
Garcia v. State, 712 S.W.2d 249 (failure to object to truthfulness testimony at trial can be prejudicial)
Ortiz v. State, 93 S.W.3d 79 (courts defer to trial strategy where possible)
King v. State, 91 S.W.3d 375 (record that shows affirmative trial action by defense can defeat ineffective-assistance claim)