A jury found Sean Derrick English to be guilty of aggravated sexual assault and indecency with a child. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(iii), (a)(2)(B) (Vernon Supp. 2005); Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). The jury assessed punishment at thirty-five and twenty years of confinement in the Texas Department of Criminal Justice, Correctional Institutions Division. Tex. Pen. Code Ann. § 12.32 (Vernon 2003); Tex. Pen. Code Ann. § 12.33 (Vernon 2003). The brief filed by English's appellate counsel concludes this appeal presents no error which would arguably support an appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On May 6, 2004, we granted an extension of time for English to file a pro se brief. English filed a pro se brief that presents three issues.

English's first issue claims he is the victim of malicious prosecution. The argument presented under this point is more accurately described as prosecutorial misconduct, as the appellant does not so much complain that he was singled out for prosecution as he complains that the prosecutor engaged in improper trial tactics. The specific complaints raised by English -- that the prosecutor implied he fled to San Antonio to avoid arrest when the appellant had told the officers that he was returning to San Antonio, that the prosecutor pointed him out for a witness's benefit and asked other leading questions, and that the prosecutor elicited answers that were contradicted by other testimony -- were not presented to the trial court or were not pursued to an adverse ruling. Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1). The first issue has not been preserved for appellate review.

The second issue addresses what the appellant claims are inconsistent statements of various witnesses. One of the alleged inconsistencies includes the location of the victim when her younger sibling told their grandmother about their having engaged in sexual play. The grandmother testified that the victim was "present in the home" but not in the room with them. The victim's stepmother testified the victim was "not in the room" but was in the "back playing Nintendo." The testimony is not identical, but one witness did not contradict the other. The grandmother testified "we called [the victim's] mother" but that she did not personally speak with the mother, that it was her daughter who spoke to the mother and then went to the mother's house with the victim's father. According to this witness, the father and stepmother left the mother's home and went immediately to the police station. The stepmother testified, "we tried to call [the mother] before we left, but I wasn't able to get ahold of her." According to the mother, she and her husband went to the police station before they went to the mother's home. This testimony is not identical, but only one of the witnesses was relating acts that she had personally engaged in, and the inconsistency in the order in which those particular events occurred is of no consequence to the guilt or innocence of the accused. Likewise, testimony by two different people that they personally called the police is not inconsistent, as more than one person could have used a telephone.

Other argued inconsistencies concern details in the seven-year-old victim's testimony about the offenses. English claims the child contradicted herself about how many times she had been touched, but the testimony to which he refers concerns answers to different questions. On direct examination, the prosecutor asked her how many times a particular form of hand-to-genital contact occurred, while on cross-examination defense counsel asked if all "the touchings" she had testified about took place in her bedroom. In the course of her testimony on direct, the child related five separate instances of four different forms of sexual contact, and an attempt at yet another form of sexual contact. In the context of the question asked in cross-examination, defense counsel was clearly using the euphemism "touchings" to refer to all of the sexual contact by the accused, not just the particular hand-to-genital contact that the child testified happened once. Likewise, on cross-examination counsel asked the child if she had said that "it always took place in your bedroom when you were on the top bunk?" then asked about the oral-genital contact. The victim testified that particular contact occurred "on my brother's old bed." In describing that particular contact on direct examination, the child had said only that it occurred in her bedroom, not that it occurred on her top bunk. The direct testimony about the top bunk had referred to another instance of a different form of sexual contact. The victim and her brother shared a bedroom, so a reference to an act occurring on her brother's bed is consistent with an act occurring in her bedroom.

English also contends there are inconsistencies between the adults' testimony about the contact and the child's, but he is comparing two different events. The adults were relating the contents of the outcry, while the child referred to the events themselves. The child communicated to the adults that the appellant had made actual contact with her genitals; she testified to this fact as well. It is possible that the adults initially assumed the child was referring to touching by hand rather than oral contact. English also claims the child contradicted herself about whether her hand contacted his genitals, but placed in context, the victim very clearly articulated the precise extent of the contact. English notes the victim testified that her brother had gone grocery shopping with their mother when the assault occurred, but on cross-examination testified that her brother was outside playing. That inconsistency in the testimony is not on a matter of any particular consequence.

In this case, the child testified that the appellant committed the acts alleged in the indictment, and the appellant denied having committed those acts. The credibility of the witnesses was for the jury to weigh. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The evidence is legally and factually sufficient to support the conviction. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

The remaining issue addresses ineffective assistance of counsel. The appellant contends counsel failed to adequately investigate and present evidence on the appellant's behalf. "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Ineffective assistance of counsel was not raised and presented in a motion for new trial; therefore, we do not have a record of a hearing in which the attorney has been provided with an opportunity to explain his actions. Absent such a record, we must presume that counsel's performance was not deficient. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Likewise, the appellant complains there were instances when counsel could have had a "bolstering," a "badgering," an "asked and answered" or a "leading" objection, but in the absence of a record in which defense counsel explains his trial strategy and his reasons for not objecting to certain testimony, we cannot conclude that counsel's performance was deficient. Id. The record does not affirmatively demonstrate the alleged ineffectiveness required to sustain a claim of ineffective assistance on direct appeal. Thompson, 9 S.W.3d at 813.

Finally, the appellant complains that appellate counsel was deficient in failing to investigate the case. We find no arguable error in our review of the clerk's record and the reporter's record; therefore, we find it unnecessary to order appointment of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The issues raised in the appellant's pro se brief are overruled. The judgment of the trial court is affirmed.

AFFIRMED.

_______________________________

STEVE MCKEITHEN

Chief Justice

Submitted on January 26, 2005

Opinion Delivered February 2, 2005

Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Tex. R. App. P. 47.4.