Opinion
No. 04-17-00512-CR
06-06-2018
Mark Eugene CUNNINGHAM, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR5425
Honorable W.C. Kirkendall, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
A jury convicted Appellant Mark Eugene Cunningham ("Cunningham") of continuous sexual abuse of a child. Cunningham pleaded true to two enhancements, and the jury assessed punishment at confinement for thirty-five years. On appeal, Cunningham argues: (1) the evidence was legally insufficient to support the verdict; and (2) he received ineffective assistance of counsel at trial. We affirm the trial court's judgment.
BACKGROUND
A. K.A.'s outcry
K.A. was three years old when she and her mother, Ladonna, first met Cunningham at church. Ladonna and Cunningham began a relationship and eventually married. On March 16, 2016, when K.A. was eleven years old, she made an outcry to Ladonna that Cunningham had been sexually abusing her since she was three or four years old. Ladonna called the police, and several Bexar County Sheriff's deputies were dispatched to Ladonna's house. Deputy Cynthia Hernandez interviewed K.A. at the scene. Early in the morning on March 17, 2016, Ladonna took K.A. to Children's Hospital in San Antonio for a Sexual Assault Nurse Examiner ("SANE") exam and then to ChildSafe, where K.A. gave another interview.
At trial, Ladonna testified as the State's outcry witness. Deputy Hernandez testified about her interview with K.A., and Deputy Calvin Anderson testified about photographs he took of Ladonna's house and its contents, which were admitted into evidence. Deputy Juan Aldaco also testified about his observations at the house and his arrest of Cunningham, who arrived at the house while the deputies were present. A forensic scientist who analyzed evidence the deputies collected at Ladonna's house testified regarding the results of her analysis.
The trial court admitted State's Exhibit 34, which is the SANE nurse's report of K.A.'s sexual assault examination. The report contains a verbatim recitation of everything K.A. told the SANE nurse. Reading from her report, the SANE nurse testified about her examination of K.A. and K.A.'s statements made during the examination.
B. K.A.'s testimony
K.A. was thirteen years old when she testified at trial. The first thing Cunningham did that made K.A. uncomfortable was touch her vagina with his hand while she was lying down in the family room. On another occasion, K.A. was sitting on the couch when Cunningham started "dry humping" her while they were both fully clothed. Both incidents happened when K.A. was in pre-kindergarten.
Sometimes when K.A. was asleep in bed, Cunningham would come into her bedroom and touch her vagina with his hand or his penis while his underwear was pulled down. While K.A. was sleeping, Cunningham would rub her vagina with his hand and put his finger inside her vagina. Cunningham used a pink vibrator to touch K.A.'s vagina.
On more than one occasion, Cunningham would put his penis inside K.A.'s vagina. Cunningham made K.A. touch his penis with her hand and vagina. Cunningham touched K.A.'s vagina with his mouth and made K.A. touch his penis with her mouth.
On one occasion, K.A. was taking a nap when Cunningham grabbed her hand and put it on his bare penis. Whenever Cunningham touched K.A.'s vagina with his hand or penis in the family room, he would face the window so he could see if anyone was coming home. Once, when K.A. was in the family room watching television, Cunningham put on DVDs showing people having sex. Cunningham asked K.A. if she wanted to do what those people were doing, and she did not answer. Cunningham then touched K.A.'s vagina with his hand, and she walked away.
When K.A. was experiencing extreme back pain, Cunningham made her take a pregnancy test and leave it under the counter. The next day, Cunningham picked K.A. up from school early because her back was hurting, and he asked her to take another pregnancy test and leave it on the counter.
On March 16, 2016, Cunningham came out of his bedroom without any clothes on and walked around the house. K.A. decided that day that she would tell Ladonna what had been happening over the years. When K.A. spoke to Ladonna, she told her about the DVDs and the pink vibrator. K.A. knew where the vibrator was located because she had seen Cunningham put it away after using it on her.
K.A. testified she told the truth to the SANE nurse and the other person who interviewed her.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Cunningham argues the evidence presented at trial was legally insufficient to support his conviction for continuous sexual abuse of a child.
A. Standard of review
In reviewing a challenge to the legal sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015). "The trier of fact is the exclusive judge of the credibility and weight of the evidence and is permitted to draw any reasonable inference from the evidence so long as it is supported by the record." Id. We are mindful that we may not sit as a thirteenth juror and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
B. Analysis
A person commits the offense of continuous sexual abuse of a child if: (1) during a period of thirty days or more, he commits at least two "acts of sexual abuse"; and (2) at the time each act was committed, he was at least seventeen years old and the victim was a child younger than fourteen years old. TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2017). An "act of sexual abuse" includes, among other things, indecency with a child and aggravated sexual assault. Id. § 21.02(c)(2), (4). A person commits the offense of indecency with a child if he engages in sexual contact with a child younger than seventeen years old. Id. § 21.11(a)(1). A person commits the offense of aggravated sexual assault of a child younger than fourteen years old if he intentionally or knowingly (1) causes the penetration of the sexual organ of the child by any means; (2) causes the penetration of the mouth of the child by the defendant's sexual organ; or (3) causes the sexual organ of the child to contact the defendant's mouth or sexual organ. Id. § 22.021(a)(1)(B), (2)(B).
Additional acts may constitute indecency with a child or aggravated sexual assault, but for brevity, we list only the acts charged in this case.
In this case, Cunningham was charged with committing two or more of the following acts of sexual abuse against K.A.:
(1) intentionally and knowingly caus[ing] the penetration of the sexual organ of [K.A.] . . . by [Cunningham's] sexual organ;(emphases omitted). As described above, K.A. testified Cunningham committed each of these acts of sexual abuse against her beginning when she was in pre-kindergarten and continuing until she was eleven years old. K.A.'s testimony alone is sufficient to support Cunningham's conviction for continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West 2017); Flores v. State, No. 04-14-00915, 2015 WL 5730263, at *5 (Tex. App.—San Antonio Sept. 30, 2015, pet. ref'd) (mem. op.) ("In a sexual assault case, the uncorroborated testimony of the child victim alone is sufficient to support a conviction.").
(2) intentionally and knowingly caus[ing] the penetration of the sexual organ of [K.A.] . . . by [Cunningham's] finger;
(3) intentionally and knowingly caus[ing] the penetration of the mouth of [K.A.] . . . by [Cunningham's] sexual organ;
(4) intentionally and knowingly caus[ing] the sexual organ of [K.A.] . . . to contact the sexual organ of [Cunningham];
(5) intentionally and knowingly caus[ing] the sexual organ of [K.A.] . . . to contact the mouth of [Cunningham]; and
(6) intentionally and knowingly engag[ing] in sexual contact with [K.A.] . . . by touching part of the genitals of [K.A.] with the intent to arouse or gratify the sexual desire of any person.
Cunningham argues the evidence is insufficient because "the various complaints K.A. has made over the years are plagued by far too many internal inconsistencies, and are contradicted by the accounts of far too many other objective witnesses." Cunningham does not identify any actual inconsistencies in K.A.'s testimony or point to any testimony from other witnesses that contradicts K.A.'s testimony. Regardless, any internal inconsistencies in K.A.'s testimony would go to her credibility, and "'reconciliation of conflicts in the evidence is within the exclusive province of the jury.'" Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (quoting Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)).
Accordingly, we hold the evidence is legally sufficient to support Cunningham's conviction for continuous sexual abuse of a child. Cunningham's first issue is overruled.
EFFECTIVENESS OF COUNSEL
In his second issue, Cunningham argues that because the "totality of representation" demonstrates his trial counsel's performance was objectively deficient, he was denied his Sixth Amendment right to effective assistance of counsel.
A. Standard of review
Texas courts apply the two-pronged Strickland test to determine whether trial counsel's representation was inadequate. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). First, the defendant must show trial counsel's performance fell below an objective standard of reasonableness. Id. Next, the defendant must affirmatively prove he was prejudiced by trial counsel's defective performance. Id. To determine whether trial counsel's performance was deficient, we look to the totality of the representation and the particular circumstances of the case. Id. at 813. Our review of counsel's performance is highly deferential, and we indulge a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Id. To defeat the presumption of reasonableness, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id.
B. Analysis
Cunningham argues trial counsel "committed at least eight [8] acts or omissions at trial that, either jointly or severally, fell below an objective standard of reasonableness." We address each alleged act or omission separately.
1. Failure to obtain rulings on pretrial motions
Cunningham argues trial counsel failed to secure rulings on any pretrial motions on Cunningham's behalf. Generally, the failure to file pretrial motions is not ineffective assistance of counsel because trial counsel may decide not to file pretrial motions as part of his trial strategy. Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001, pet. ref'd). "[U]nless an appellant shows that a pretrial motion had merit and that a ruling on the pretrial motion would have changed the outcome of the case, he has failed to establish both prongs of the Strickland standard." Jones v. State, No. 04-12-00773-CR, 2013 WL 4736383, at *3 (Tex. App.—San Antonio Sept. 4, 2013, pet. ref'd) (mem. op.) (citation omitted). Here, Cunningham does not identify the motions he contends trial counsel should have filed, nor has he shown how obtaining a ruling on such motions would have changed the outcome of this case.
2. Failure to seek continuance
Cunningham argues trial counsel failed to seek a continuance to determine whether Cunningham's prior convictions, which the State used for enhancement of punishment, were "final" and "in proper sequence." However, Cunningham does not suggest the prior convictions were not final or in proper sequence, and he pleaded true to both enhancements. Therefore, even if trial counsel's failure to obtain a continuance were ineffective assistance of counsel, Cunningham has failed to show any prejudice. See Thompson, 9 S.W.3d at 812 (holding defendant alleging ineffective assistance of counsel must affirmatively prove trial counsel's actions prejudiced him).
3. Failure to cross-examine K.A. prior to hearsay testimony
Cunningham argues trial counsel permitted "numerous state actors" to give hearsay testimony regarding statements made by K.A. without first demanding a prior opportunity to cross-examine K.A. Cunningham cites Crawford v. Washington, 541 U.S. 36 (2004) for the premise that a declarant's out-of-court, testimonial statements are inadmissible unless the defendant had a prior opportunity to cross-examine the declarant. But the Crawford rule only applies where the declarant is unavailable to testify at trial. See id. at 68 ("Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (emphasis added)). Here, K.A. testified at trial, and trial counsel had the opportunity to cross-examine her on the stand. Further, even if inadmissible hearsay testimony regarding K.A.'s out-of-court statements was admitted, it would be harmless because K.A. testified to the same facts. See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding inadmissible evidence is harmless if other evidence that proves the same fact was admitted without objection).
4. Failure to cross-examine witnesses
Cunningham argues trial counsel rendered ineffective assistance because he failed to cross-examine the Bexar County Sheriff's deputies who were dispatched to Ladonna's house on March 16, 2016. "Cross-examination is inherently risky, and a decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial." Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). "If ineffective, cross-examination can serve to bolster the credibility of the witness and underscore the very points that are sought to be impeached. Thus, unless there is a good basis on which to cross-examine . . . it can be more effective to refrain from cross-examining a damaging witness to minimize the impact of his testimony." Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, writ ref'd).
Here, trial counsel could have determined cross-examining the deputies would have been more damaging than beneficial. Cunningham does not attempt to demonstrate how cross-examination of the deputies would have benefitted his case and, therefore, has not overcome the strong presumption that trial counsel's decisions regarding cross-examination fall within the wide range of reasonable professional assistance. See McFarland, 163 S.W.3d at 755-57.
5. Statements regarding SANE nurse's testimony
Cunningham argues trial counsel reinforced the SANE nurse's "conclusory" testimony that "90 percent of [children] that are penetrated don't have any physical evidence of penetration." However, trial counsel cross-examined the SANE nurse regarding this testimony:
Q. [by trial counsel] Okay. So you've made—would it be fair to say some conclusory statements about, for example, that many times someone has had penetration but there's no physical evidence of it.Trial counsel also criticized this testimony during his closing argument: "What was it, 90 percent of them that are penetrated don't have any physical evidence of penetration, even though nobody ever follows up to see what's true and what isn't with the SANE nurse." (emphasis added). Cunningham does not explain how trial counsel "reinforced" the SANE nurse's testimony or how doing so prejudiced him. See Thompson, 9 S.W.3d at 812 (holding defendant alleging ineffective assistance of counsel must affirmatively demonstrate prejudice).
A. [by SANE nurse] Correct.
Q. So if you never follow up with any of your patients, how do you know what's true and what isn't?
A. I just have to go based on what the patient tells me, so I don't know.
6. Statements made in closing arguments
The final three acts or omissions Cunningham argues constitute ineffective assistance of counsel pertain to statements made by trial counsel during closing arguments. Where the record is silent as to trial counsel's strategy regarding closing argument, an appellant typically cannot overcome the strong presumption that trial counsel's conduct was reasonable. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Here, the record is devoid of any explanation of trial counsel's strategy. Further, Cunningham does not explain how any of the statements he identifies actually prejudiced him. See Thompson, 9 S.W.3d at 812 (holding defendant alleging ineffective assistance of counsel must affirmatively demonstrate prejudice).
First, Cunningham appears to argue trial counsel inappropriately made reference to Cunningham's failure to testify at trial, citing the following line from trial counsel's closing argument in the guilt-innocence phase: "So you're going to have to, if you will, answer in your head, how I might respond or how [Cunningham] might respond to what the State of Texas is going to say after I sit down." As is clear from the transcript, trial counsel did not comment on Cunningham's failure to testify, but rather asked the jury to consider Cunningham's position after hearing the State's rebuttal because trial counsel would not be allowed to respond.
Second, Cunningham argues trial counsel's "worst deficiencies" were the following statements made during closing argument in the guilt-innocence phase.
• "The State . . . legislature has made a law to protect us from child molesters. Everyone agreed. And they've made it as easy as possible to . . . convict him of it . . . [because the] State doesn't have to prove you any dates in this case."(alterations in Cunningham's brief). When read in the full context of trial counsel's closing argument, it is clear these statements were part of trial counsel's broader argument that the determination of Cunningham's guilt or innocence is not as simple as counsel for the State suggested.
• "[I]f you believe everything that [K.A.] said, I might as well not even be standing here."
Finally, Cunningham argues trial counsel's brief punishment phase closing argument was "even worse," specifically trial counsel's statement: "There may be some reasons for you to assess more than [25 years]. I don't know what they would be other than for someone's statistics or to make someone feel better." It is clear trial counsel was attempting to discourage the jury from assessing more than twenty-five years simply "to make someone feel better." Further, even a brief closing argument such as this one is not necessarily ineffective assistance of counsel. See Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.—Dallas 2002, no pet.) (rejecting complaint that closing argument should have been more strenuous because record was silent as to counsel's tactics or strategy).
For these reasons, we conclude the totality of the representation and the particular circumstances of the case do not demonstrate trial counsel's performance was deficient. See Thompson, 9 S.W.3d at 813. Cunningham's second issue is overruled.
CONCLUSION
Because we conclude the evidence is legally sufficient to support the verdict and Cunningham's trial counsel did not render ineffective assistance of counsel, we affirm the trial court's judgment.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH