No. 14-07-00296-CR
Opinion filed May 27, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 4, Harris County, Texas, Trial Court Cause No. 1,396,606.
Panel consists of Justices YATES, GUZMAN, and BROWN.
LESLIE B. YATES, Justice.
A jury convicted appellant Donald Ray Idlebird of misdemeanor assault. In three issues, appellant claims that the evidence is factually insufficient to support his conviction, the State's expert witness testimony was inadmissible, and he received ineffective assistance of counsel. We affirm.
I. Factual and Procedural Background
Complainant Ira Johnson, appellant's girlfriend of five years, called 911 on August 16, 2006, claiming that appellant had punched and choked her. Officer Richard Crabtree responded to the 911 call and found that Johnson had locked herself in the bathroom. Johnson's hair and clothes were in disarray, she was crying, and she had a cut on her lip. Johnson repeated to Officer Crabtree that appellant had assaulted her by punching and choking her. She claimed he punched her when they were outside in the front yard and he choked her inside the house in the bathroom. Officer Crabtree took appellant into custody on grounds of suspected domestic abuse. Johnson testified for the defense at trial, relating a version of events that differed substantially from both the 911 tape and Officer Crabtree's testimony. Johnson claimed that she, appellant, and several family members were out in the front yard joking around. Johnson was wearing a ring appellant had given to her. When Johnson joked with her family members that the ring was an engagement ring, appellant demanded that she either give him the ring back or behave. Johnson testified that appellant noticed a tiny drop of blood on Johnson's lip and wiped it off. Johnson went inside to the bathroom to look at her lip, and appellant followed her. While in the bathroom, appellant again requested the ring. Johnson testified that she gave him the ring and then called 911 because she was angry at him and wanted her ring back. The State attempted to impeach Johnson by questioning her about a conversation Johnson had with an employee at the Harris County District Attorney's Office (DA's Office) a couple of days after the incident. Johnson testified that she did not recall telling the employee that appellant had pushed her hard against the bathroom wall, put his left hand around her throat, and choked her. She testified that she told the employee she wanted the charges against appellant dropped. Johnson also testified that in October of 2006, she again spoke with the DA's Office, telling them that the only reason she had called 911 was because she wanted appellant to give back her ring. A jury found appellant guilty of assault and sentenced him to one year in jail, probated. This appeal followed. II. Analysis
In his first issue, appellant contends that because Johnson recanted her allegation of abuse on the witness stand, the evidence is factually insufficient to support his conviction. In reviewing factual sufficiency, we do not view the evidence "in the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Instead, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000). At trial, the State played Johnson's 911 call for the jury, in which she complained that appellant punched and choked her. Officer Crabtree testified that Johnson said essentially the same thing to him when he responded to the 911 call. However, at trial Johnson denied that any abuse had occurred. Any conflict in the testimony is for the jury to resolve. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000). As the trier of fact, the jury was the sole judge of the credibility of the witnesses and was free to accept or reject all or part of the witnesses' testimonies. See id. Here, the jury was free to believe the 911 tape and Officer Crabtree's version of the events over Johnson's trial testimony. See Bufkin v. State, 179 S.W.3d 166, 170 (Tex.App.-Houston [14th Dist.] 2005) (holding evidence was factually sufficient to support assault conviction because jury was free to rely on evidence presented by State and to disbelieve complainant's trial testimony in which she recanted), aff'd on other grounds, 207 S.W.3d 779 (Tex.Crim.App. 2006). Furthermore, the State impeached Johnson by attempting to show that she told an employee at the DA's Office about the alleged assault. Considering the evidence as a whole, the fact that Johnson recanted her allegations of abuse does not greatly outweigh the evidence supporting the jury's verdict. We conclude the jury's decision was not so contrary to the weight of the evidence as to be clearly wrong and manifestly unjust. We overrule appellant's first issue. In his second issue, appellant maintains that the State's expert, social worker Erica Hoffman, did not meet the qualifications for expert testimony as set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993). Specifically, appellant complains about Hoffman's qualifications and methodology and asserts that because Hoffman did not "fit" her testimony to the facts of the case as required by Daubert, her testimony was not relevant. See id. Appellant argues that the State introduced Hoffman's testimony merely to bolster the State's case through implication. As a result, appellant claims admission of Hoffman's testimony was so prejudicial and unfair as to amount to fundamental error requiring reversal. The State replies that appellant failed to preserve error with respect to this issue. We agree. Generally, to preserve error for appellate review, the complaining party must demonstrate that he lodged an objection and stated the basis for the objection with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). Objections to a witness's qualifications or methodology or to the relevance of the expert's testimony cannot be raised for the first time on appeal. See TEX. R. APP. P. 33.1(a); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 411 (Tex. 1998) (holding party who failed to object to scientific reliability of expert witnesses at trial could not raise issue for first time after jury reached a verdict); Wilson v. State, 7 S.W.3d 136, 145 (Tex.Crim.App. 1999) (holding failure to apprise trial court of objections to expert witness's qualifications resulted in waiver on appeal). At trial, appellant objected only once towards the end of Hoffman's testimony on grounds that it was speculative. Appellant did not voice any objections to Hoffman's qualifications or methodology, or claim that her testimony was unfairly prejudicial, and thus he failed to preserve these issues for appellate review. We overrule appellant's second issue. In his third issue, appellant contends his trial counsel performed deficiently by failing to object to Hoffman's qualifications, methodology, the relevance of her testimony, and that her testimony was highly prejudicial. The standard under which we analyze whether trial counsel provided effective assistance was established in Strickland v. Washington, 466 U.S. 668, 687 (1984). The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 690. If counsel's performance fell below this standard, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. at 694. In reviewing counsel's performance, we begin with the strong presumption that counsel was competent — that her actions and decisions were reasonably professional and motivated by sound trial strategy. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson, 9 S.W.3d at 813. The record in this case is silent as to why appellant's trial counsel did not raise the above objections to Hoffman's testimony. When the record is silent, we may not speculate about the reasons underlying counsel's decisions. See Perez v. State, 56 S.W.3d 727, 731 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). On such a silent record, this court can only find ineffective assistance if the challenged conduct was so outrageous that no competent attorney would have engaged in it. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Given Hoffman's experience, education, training, and the fact that other Texas courts have found expert testimony on the behavior of battered women admissible, counsel may have reasonably decided that any objections as to Hoffman's qualifications or the relevance of her testimony were unnecessary and would be overruled. See Edmond v. State, 116 S.W.3d 110, 115 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (holding trial counsel is not ineffective for failing to make a frivolous objection). Moreover, the decision to refrain from objecting further to Hoffman's testimony could have been part of a valid trial strategy. During closing argument, counsel attempted to discount the value of Hoffman's testimony by saying, "And so, not much evidence there. Just a lot of facts — well, not facts, just a lot of family violence." Counsel may therefore have intentionally refrained from objecting in an attempt to create the appearance that because Hoffman mainly testified about the dynamics of family violence and said little regarding the specific, alleged offense, there was no need to bother raising any further objection to her testimony. See Heiman v. State, 923 S.W.2d 622, 624, 626-27 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (concluding failure to object to inadmissible, extraneous evidence of appellant's sexual misconduct and drug use could have been result of valid strategy to create appearance that there was no need to bother objecting, because testimony was not worthy of belief). Appellant has not shown that counsel's conduct was so outrageous no competent attorney would have engaged in it, and thus he cannot meet the first prong of Strickland. We overrule appellant's third issue. We affirm the trial court's judgment.