Nos. 14-06-01043-CR, 14-06-01044-CR
Opinion filed May 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 248th District Court Harris County, Texas, Trial Court Cause Nos. 1086250, 1033939.
Panel consists of Justices YATES, FOWLER, And GUZMAN.
LESLIE B. YATES, Justice.
Appellant James Earnest Byars challenges his conviction on two counts of aggravated sexual assault of a child. In six issues, appellant claims that his trial counsel provided ineffective assistance by (1) introducing evidence of an extraneous offense, (2) failing to request a limiting instruction, (3) failing to request designation of the proper outcry witness, and (4) failing to object to inadmissible hearsay testimony. We affirm.
I. Factual and Procedural Background
Appellant is married to Agatha Byars, and they have two daughters, Amanda and Patricia. Patricia is the step-mother of the complainant, D.B. Appellant is D.B.'s step-grandfather. On the evening of July 9, 2005, Amanda arrived at appellant's house. Upon walking into the living room, she saw D.B., age twelve, sitting in appellant's lap. Appellant was open-mouth kissing D.B. Shocked, Amanda went to her room, then went back out to the front porch where she talked to her boyfriend on her cell phone. Amanda later told the police that through a window she could see appellant leaning back in the recliner and D.B. kneeling in front of appellant. Amanda said she saw D.B. moving her head up and down with appellant's penis in her mouth. Amanda also told the police that she later took D.B. aside and asked D.B. whether she and appellant were open-mouth kissing and whether D.B. had appellant's penis in her mouth. D.B. answered yes to both questions. The next day, Amanda picked up D.B. and took her out to lunch. Amanda arranged for Harris County Sheriff Deputy Nick Parojcic to meet Amanda and D.B. at the restaurant. Deputy Parojcic spoke briefly with Amanda and D.B. Specifically, Deputy Parojcic asked D.B. if she knew why Parojcic was there. D.B. answered it was about her "Poppa" (appellant) touching her in "bad places." Deputy Parojcic asked whether D.B. had ever told appellant not to touch her there. D.B. replied she had not because if she did, appellant would not give her a gift. The following day, Amanda took D.B. to the Children's Assessment Center (CAC), where forensic interviewer Lisa Holcomb interviewed D.B. regarding the sexual assault. That same day, Amanda gave a voluntary statement to Detective Mark Morgan. Appellant also came to the CAC and gave a voluntary statement to Detective Morgan in which he admitted that in October of 2004, in response to sexual advances by D.B., he licked D.B.'s vagina, French kissed her, and rubbed his hand against her vagina. Appellant also admitted that when Amanda was six years old, appellant had showed his penis to Amanda and another little girl while the children swam naked in the backyard swimming pool. The State gave advance notice to appellant that it intended to offer D.B.'s outcry statements through testimony by Amanda, Deputy Parojcic, and Holcomb. During opening argument, the prosecutor named Holcomb as the outcry witness. At trial Amanda testified to the events she had witnessed on July 9, 2005 but not to anything D.B. said. Holcomb testified D.B. told her appellant started "molesting" her when she was eleven years old and that she let him because otherwise he would not buy her gifts she really wanted. Holcomb further testified D.B. said appellant licked her "private," French kissed her, stuck his fingers down her panties, rubbed her "private with his finger," made her put his penis in her mouth, and made her masturbate him. Holcomb also testified that D.B. described a conversation between Amanda and D.B.'s grandmother where Amanda talked to D.B.'s grandmother about seeing D.B. molested and wanting to call the police but her grandmother refusing. A jury convicted appellant of intentionally and knowingly causing the sexual organ of a child under fourteen to contact appellant's mouth and of intentionally and knowingly causing the mouth of a child under the age of fourteen to contact appellant's sexual organ. Appellant was sentenced to a term of life imprisonment in the Texas Department of Criminal Justice. On appeal, appellant claims he received ineffective assistance of counsel. In his first issue, appellant claims counsel performed deficiently by introducing evidence of appellant's extraneous sexual offenses and by failing to request a limiting instruction on the use of such evidence. In his second issue, Appellant asserts counsel was ineffective because he did not ask the trial court to determine the proper outcry witness to D.B.'s statements. In issues three through six, appellant claims counsel compromised his Sixth Amendment right to confrontation by failing to object to inadmissible hearsay testimony. II. Standard of Review
Ineffective assistance of counsel claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). We apply the Strickland test when reviewing allegations of ineffective assistance during non-capital punishment proceedings. Gholson v. State, 5 S.W.3d 266, 272-73 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). To prove ineffective assistance, appellant must demonstrate by a preponderance of the evidence that counsel's representation fell below the standard of prevailing professional norms and a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 687-96; Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). A Strickland claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id. "This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record." Id. (footnotes omitted). Absent an opportunity for a trial attorney to explain his actions, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Id.III. AnalysisA. Extraneous Offense Evidence
Patricia Broussard, appellant's daughter and D.B.'s step-mother, testified for the defense. During direct examination, appellant's counsel sought to introduce Patricia's written statement, taken by Detective Morgan, in which she described instances from her childhood when appellant sexually assaulted her. Before admitting the statement, the trial court questioned counsel regarding his strategy in introducing this facially damaging evidence. The court pointed out that if the defense chose not to introduce the statement, the jury would never know it existed. Counsel replied that Detective Morgan had taken both Patricia's and Amanda's statements, as well as appellant's confession, and that Patricia would testify that not all of the statement was correct. Counsel explained that he intended to use Patricia's testimony regarding the inaccuracy of the statement to cast doubt on other statements taken by Detective Morgan and to put a "pattern of a lack of veracity before the jury." The court admitted Patricia's statement into evidence; counsel did not request a contemporaneous limiting instruction regarding the jury's use of the evidence. Counsel succeeded in eliciting a general assertion from Patricia that not all of the statement was correct. On cross-examination the State read the entire statement aloud to the jury. Appellant argues counsel performed deficiently by introducing the statement and by failing to elicit testimony from Patricia as to the specific portions of the statement that were untrue. Appellant claims this action did not advance any defensive theory. However, the record indicates that counsel articulated to the judge the reasonable trial strategy of discrediting a key witness for the State and attempted to carry out this strategy in a reasonable manner. See Strickland, 466 U.S. at 689; Josey v. State, 97 S.W.3d 687, 696 (Tex.App.-Texarkana 2003, no pet.) (attempt to discredit State's primary witness, which resulted in opening door to admission of extraneous offense evidence, was not improper trial strategy). Moreover, trial counsel must be allowed to take calculated risks in defending clients, and simply because a trial strategy did not work does not mean counsel performed deficiently. See State v. Balderas, 915 S.W.2d 913, 918-19 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (counsel was not ineffective when strategy of using appellant's confession to convince jury to convict on lesser offense failed). Because the record clearly reflects that counsel's decision to introduce the statement was motivated by a reasonable trial strategy, we do not find the above conduct so outrageous that no competent attorney would have engaged in it. Appellant further argues that trial counsel's failure to request a contemporaneous limiting instruction harmed him because the jury could have convicted based on the assumption that appellant was acting in conformity with a criminal character. While the failure to request a limiting instruction is troubling, the record does not reveal counsel's rationale in not requesting the instruction, and consequently appellant has failed to rebut the presumption that counsel's inaction was the result of sound trial strategy. Counsel may have strategically chosen not to request a limiting instruction in order to avoid reminding the jury of the incriminating evidence. See, e.g., Garcia v. State, 887 S.W.2d 862, 881 (Tex.Crim.App. 1994) (holding that failure to request limiting instruction was strategically valid decision to avoid calling further attention to extraneous acts); Webb v. State, 995 S.W.2d 295, 301 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (concluding that although "the best course of action is to request a contemporaneous limiting instruction. . . . trial counsel may have purposely decided not to request a limiting instruction to prevent further attention being drawn to the extraneous offenses"); see also Delgado v. State, 235 S.W.3d 244, 250 (Tex.Crim.App. 2007) (noting that "the decision of whether to request a limiting instruction concerning the proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy"). Thus, absent evidence in the record affirmatively explaining counsel's strategy, appellant cannot rebut the strong presumption of reasonable assistance. Even if counsel performed deficiently by not requesting the limiting instruction, appellant has failed to demonstrate a reasonable probability that but for counsel's deficiency, the result of the proceeding would have been different. See Salinas, 163 S.W.3d at 740. The jury charge included a limiting instruction, reducing the likelihood that the jury relied upon the extraneous acts mentioned in Patricia's statement when they convicted appellant. See Walker v. State, 4 S.W.3d 98, 107 (Tex.App.-Waco 1999, pet. ref'd) (stating that even though counsel failed to request a contemporaneous limiting instruction, limiting instruction in jury charge negated any possibility that jury would have relied upon extraneous offenses about which appellant complained). Moreover even absent counsel's alleged ineffectiveness, the jury still had sufficient evidence in the form of Amanda's eye-witness testimony and appellant's own incriminating confession on which to convict. See id. (even if counsel's failure to request a limiting instruction was deficient, jury would still have had sufficient evidence upon which to convict). Because we do not find that the above conduct constituted ineffective assistance of counsel, we overrule appellant's first issue. B. Designation of Outcry Witness and Inadmissable Hearsay
In his second issue, appellant complains counsel performed deficiently by failing to ask the trial court to determine who among Amanda, Holcomb, Detective Morgan, and Deputy Parojcic was the proper outcry witness. In his fourth, fifth, and sixth issues, appellant argues counsel was ineffective in failing to object to inadmissible hearsay testimony by Amanda, Holcomb, Detective Morgan, and Deputy Parojcic. In these related points of error, appellant maintains that Amanda should have been the designated outcry witness and that the testimony of Holcomb, Detective Morgan, and Deputy Parojcic should have been objected to by trial counsel and excluded by the court. To succeed on his ineffectiveness claim, appellant must demonstrate that had counsel requested designation of the outcry witness, the trial court could only have determined that Amanda was the outcry witness and that Holcomb's, Detective Morgan's, and Deputy Parojcic's testimony to D.B.'s out-of-court statements were inadmissible hearsay, and that a reasonable probability exists that but for the admission of this hearsay the outcome of the proceeding would have been different. See Salinas, 163 S.W.3d at 740. We do not find support for this scenario in the record. See Goodspeed, 187 S.W.3d at 392 (allegations of ineffectiveness must be firmly founded in the record). According to article 38.072 of the Texas Code of Criminal Procedure, outcry testimony from the first adult (other than the defendant) to whom a child twelve years of age or younger makes statements describing the alleged offense will not be inadmissible because of the hearsay rule if certain requisites are met.See TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon 2005); Chapman v. State, 150 S.W.3d 809, 812 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). To qualify as an outcry statement under article 38.072, the statement must be more than a general allusion of sexual abuse and the child must have described the alleged offense in some discernible way. Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990). Multiple outcry witnesses may testify about different types and instances of abuse committed by the defendant if each witness is the first person to whom the child victim relayed information about the different instances of abuse. See Tear v. State, 74 S.W.3d 555, 559 (Tex.App.-Dallas 2002, pet. ref'd); Hernandez v. State, 973 S.W.2d 787, 789 (Tex.App.-Austin 1998, pet. ref'd). The trial court has broad discretion in determining the proper outcry witness, and its determination will not be disturbed absent an abuse of discretion. Garcia, 792 S.W.2d at 92. As a threshold matter, we note that the record is silent as to why counsel did not move to designate the outcry witness or object to hearsay testimony, and we will not speculate about counsel's strategic decisions. See Green v. State, 191 S.W.3d 888, 895 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd) (in face of undeveloped record, court may not speculate about why trial counsel did not object). Regarding appellant's argument that counsel should have moved to designate the outcry witness, based on the State's pretrial Notice of Intention to Use Child Abuse Victim's Hearsay Statement, counsel may have reasonably concluded that Amanda, Holcomb, and Deputy Parojcic would each testify to a discrete instance of abuse. See Hernandez, 973 S.W.2d at 789 (testimony of multiple outcry witnesses was admissible because while testimonies both involved conduct comprising the charged offense, they described discrete events occurring at different locations and times). Detective Morgan's testimony was introduced not as outcry testimony, but to impeach Amanda. Given that counsel could have concluded Amanda, Holcomb, and Deputy Parojcic all qualified as outcry witnesses and that Detective Morgan was not giving outcry testimony, counsel may have reasonably decided there was no need to request a determination of the outcry witness. Appellant has not rebutted the presumption that counsel's failure to request designation of the outcry witness was the exercise of reasonable professional judgment. See Green, 191 S.W.3d at 895. To show counsel was ineffective for failing to lodge a hearsay objection, appellant must show that the trial court would have erred in overruling such an objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). The trial court could have determined that both Amanda and Holcomb were proper outcry witnesses, bringing their testimony within the outcry exception to the hearsay rule.See Chapman, 150 S.W.3d at 812. Appellant argues that Detective Morgan's testimony to what Amanda said D.B. told her constituted hearsay within hearsay and as such was inadmissible. When a prior statement is not offered as primary evidence, but to impeach the witness's credibility, it is not hearsay. Baldree v. State, No. 01-06-00211-CR, ___ S.W.3d ___, 2007 WL 1845114, at *4 (Tex.App.-Houston [1st Dist.] June 28, 2007, pet. ref'd). Such prior inconsistent statements do not constitute hearsay because they are not offered for the truth of the matter asserted. See TEX. R. EVID. 801(d). The trial court could have concluded that Detective Morgan's testimony was admissible, reasoning that Amanda's testimony to D.B.'s statements were admissible under the outcry exception and that Detective Morgan's testimony to what Amanda said was offered to impeach Amanda and not for the truth of the matter asserted. Appellant has not shown the trial court would have erred in overruling any hearsay objections to Amanda's, Holcomb's, or Detective Morgan's testimony. Finally, without deciding whether Deputy Parojcic's testimony to D.B.'s statements called for an objection, Deputy Parojcic's testimony was cumulative because Holcomb testified to essentially the same statements by D.B. The failure to object to cumulative evidence is harmless and will not support a claim of ineffective assistance of counsel. See Marlow v. State, 886 S.W.2d 314, 318 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (holding failure to object to hearsay testimony was harmless where appellant's testimony contained essentially the same evidence). Appellant has not carried his burden under either prong of the Strickland test, and we do not find counsel's failure to request designation of the outcry witness or raise hearsay objections so outrageous that no competent attorney would have engaged in it. See Strickland, 466 U.S. at 687-96; Goodspeed, 187 S.W.3d at 392. We overrule appellant's second issue and fourth, fifth, and sixth issues with respect to appellant's hearsay argument. C. Right to Confrontation
In his third, fourth, and sixth issues, appellant claims counsel should have raised a Confrontation Clause objection to testimony by Holcomb, Amanda, Detective Morgan, and Deputy Parojcic because D.B. did not testify during the guilt-innocence phase of trial. In his fifth issue, appellant claims counsel should have objected on Confrontation Clause grounds to Holcomb's testimony to what D.B. said Amanda and D.B.'s grandmother said. In Crawford v. Washington, the United States Supreme Court held that admission of testimonial hearsay violates a defendant's Sixth Amendment right to confrontation when the declarant is unavailable to testify and the defendant had no prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). The Confrontation Clause may act as a brake upon the admission of "testimonial" child outcry statements unless the child actually testifies or is presently unavailable but has been subject to cross-examination in a prior proceeding. See Martinez v. State, 178 S.W.3d 806, 811 n. 21 (Tex.Crim.App. 2005). Appellant argues that because D.B.'s statements were testimonial in nature and she was not available to testify at the guilt-innocence phase of trial, Crawford bars admission of her statements through testimony by Holcomb, Amanda, Detective Morgan, and Deputy Parojcic. We again observe that because the record does not reveal trial counsel's strategy behind the decision not to object, appellant has failed to rebut the strong presumption that his counsel acted reasonably. See Green, 191 S.W.3d at 895. In addition, D.B. testified as a witness for the defense during the punishment phase of trial. Other than the fact that the State chose not to call D.B. to testify during the guilt-innocence phase, appellant does not point to any other evidence demonstrating D.B.'s unavailability, nor does he explain how Crawford applies when the declarant testifies during part of the trial. See Hernandez v. State, No. 03-04-00418-CR, 2005 WL 3440748, at *2 (Tex.App.-Austin Dec. 15, 2005, no pet.) (mem. op., not designated for publication) (overruling ineffective assistance claim for failure to raise Confrontation Clause objection because appellant made no effort on appeal to demonstrate that such an objection would have been meritorious). Consequently, appellant has failed to meet the first prong of Crawford by showing that D.B. was unavailable to testify. See Crawford v. State, 139 S.W.3d 462, 465 (Tex.App.-Dallas 2004, pet. ref'd) (concluding Crawford did not apply because appellant had opportunity to cross-examine complainant regarding extrajudicial testimonial statements). In addition, because Amanda and D.B.'s grandmother both testified, there was no confrontation violation when Holcomb testified to what D.B. said Amanda and her grandmother said. Accordingly, counsel was not ineffective for failing to lodge an objection. See Edmond v. State, 116 S.W.3d 110, 115 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (trial counsel is not ineffective for failing to raise a frivolous objection). Because appellant has failed to rebut the strong presumption that counsel made the above decisions in the exercise of reasonable professional judgment and because appellant has not shown that D.B. was unavailable to testify, appellant has not demonstrated that trial counsel's failure to raise Confrontation Clause objections constituted ineffective assistance. We overrule appellant's third, fourth, fifth, and sixth issues with respect to appellant's confrontation argument. D. Conclusion
Appellant's above complaints regarding the performance of his trial counsel are not firmly rooted in the record. In the absence of such a record on direct appeal, appellant cannot overcome the strong presumption that his trial counsel's strategy was reasonable from counsel's perspective at trial. We affirm the trial court's judgment.