Opinion
No. 05-01-01401-CR.
Opinion Filed April 14, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-73379-PN. Affirmed.
OPINION
Appellant Jonathan Fitzgerald Reynolds was charged by indictment with the offense of aggravated sexual assault of a child. The indictment alleged an "on or about" date of January 17, 2001. Appellant exercised his right to trial by jury and entered his plea of not guilty. At the conclusion of the guilt stage of the trial, the jury returned a verdict of guilty and was discharged. The trial court then held a brief hearing on the issue of punishment, at the conclusion of which the trial court sentenced appellant to twenty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice, and a $5,000.00 fine. On appeal, appellant brings two points of error alleging ineffective assistance of counsel. We affirm. In order to put appellant's complaints in perspective, a short rendition of the evidence admitted at trial is helpful. The victim, S. M., was ten-years old and in the fourth grade when appellant began sexually assaulting her. S. M. lived in a three-bedroom house with appellant, her mother, her two sisters, and appellant's daughter. S. M. had her own bedroom. S. M.'s two younger sisters and appellant's daughter shared the second bedroom, and appellant and S. M.'s mother occupied the third bedroom. S. M.'s grandmother moved in and began sharing S. M.'s bedroom with her in late October 2000. In January 2001, after appellant had sexually assaulted her multiple times at the house over a period of more than a year, S. M. wrote a note to her grandmother, stating "somebody in the family is messing around with me." When asked, S. M. accused appellant of the sexual assaults. The grandmother alerted a cousin, Anton McNealy, who came over to the house. S. M. handed her note to McNealy and verbally ratified that appellant had sexually assaulted her. McNealy informed S. M.'s mother and appellant of S. M.'s accusation. S. M.'s grandmother took her to Children's Medical Center where, joined by her mother, S. M. was examined by a physician with forensic experience in the area of child abuse. The doctor found physical evidence of multiple occasions of sexual intercourse. In questioning by the doctor, S. M. said that she had sex with a boy named Peanut, as well as with appellant. After police detective Warren Breedlove interviewed S. M. and her mother, he determined to arrest appellant and file the case with the district attorney. In appellant's first point of error, he alleges that his attorney was ineffective for not requesting that the State be compelled to elect which of the several sexual assaults testified to at trial the State would proceed on to the jury. In his second point of error, appellant alleges ineffective assistance of counsel for not objecting to the State's impeachment of J. M., S. M.'s eight-year-old younger sister, called by the State in its case-in-chief. Appellant's claims of ineffective assistance of counsel are founded on the Sixth and Fourteenth Amendments to the United States Constitution and on Article I, section 10, of the Texas Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963); Hernandez v. State, 726 S.W.2d 53, 56 (Tex.Crim.App. 1986). After a discussion of the applicable standard of review, we shall analyze these points of error seriatim. In order to prevail in a claim of ineffective assistance of counsel, a defendant must demonstrate on appeal that: 1) his lawyer's performance was deficient, i.e. that the lawyer made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment, and 2) the errors of counsel were so serious that there exists a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. at 694; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986). The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. See Arnold v. State, 68 S.W.3d 93, 101 (Tex.App.-Dallas 2001, pet. ref'd). In examining the record to determine if our confidence in the outcome is undermined, we are guided by the following wording from Strickland: In making this determination [that the outcome would have been different], a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Strickland, 466 U.S. at 695-96. Further, on appeal we engage in the strong presumption that counsel's performance was reasonable, and it is up to the defendant on appeal to overcome the presumption and meet the Strickland test by a preponderance of the evidence. See Patrick v. State, 906 S.W.2d 481, 495 (Tex.Crim.App. 1995); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We acknowledge that in most cases trial counsel is better positioned than any appellate court to judge the pragmatism of particular acts or omissions in a case. See Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999). Therefore, we look to the totality of representation, rather than the isolated acts or omissions of a trial lawyer, except in those few instances where a single act or omission of a lawyer can amount to ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The allegedly ineffective lawyer's performance is evaluated by looking at the lawyer's actions at the time they were either made or not made, depending on the complaint, without the perspective of hindsight. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim. App. 1983). Tactical decisions that do not fall below an objective standard of reasonableness will not be questioned on appeal absent a showing that, from all appearances, the decision has no plausible basis in trial strategy or trial tactics. See Derreck v. State, 773 S.W.2d 271, 273 (Tex.Crim.App. 1989); Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App. 1980). Finally, we also note that a claim of ineffective assistance of counsel may seldom be proven on direct appeal. See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). As stated by the court of criminal appeals in Thompson: Rarely will a reviewing court be provided the opportunity to make its determination [whether counsel at trial was ineffective] on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Thompson, 9 S.W.3d at 813-14. In point of error number one, appellant faults his attorney for not requesting that the State elect which of the proven offenses the State would rely on for conviction. To better understand this point of error, some background on the germination of a defendant's right to force the State to make an election follows. As a matter of case law, where one sexual act is alleged as the offense in an indictment and the evidence at trial establishes that this act occurred on more than one occasion, the State must elect, at the close of their case-in-chief, the occasion upon which it would rely for conviction. See O'Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim. App. 1988). The election once made, has several effects, including limiting the jury's consideration of the "extraneous" acts in evidence but not relied on for conviction. See Ex parte Goodbread, 967 S.W.2d 859, 860-61 n. 2 (Tex.Crim.App. 1998). The election also furnishes valuable information to the accused, for without the notice that an election affords, a defendant might find himself without notice as to which of a multitude of acts he might be called upon to defend. See O'Neal, 746 S.W.2d at 772. If no election is made, the doctrine of double jeopardy will bar prosecution of all offenses raised by the evidence at trial. See Goodbread, 967 S.W.2d at 861. In this case, S. M. testified about two time-specific assaults, one in 1999 and one (the "Bloody Mary" assault) close in time to the indictment date of January 17, 2001, and numerous non-time-specific sexual assaults. The State sought, by the date in the indictment and by corroborating witnesses, to rely on the testimony of the "Bloody Mary" assault. This assault potentially involved S. M.'s sisters as witnesses, because they were sent to the garage to play while appellant sexually assaulted S. M. inside the house. After the State rested its case-in-chief, the defense recalled one sister and called the other sister to testify, to rebut the State's evidence of the "Bloody Mary" assault. The defense then rested, and both sides closed. The crux of the election doctrine is the ability to know which offense to defend against. See Gutierrez v. State, 8 S.W.3d 739, 747-48 (Tex.App.-Austin 1999, no pet.). In a sexual assault case where multiple sexual assaults are proven, and where the testimony clearly focused on a particular offense upon which the State intended to rely for conviction, the defendant is virtually put on the same notice as he would have received with an "election." See O'Neal, 746 S.W.2d at 772. Such is the case here. After the State closed, appellant chose to present evidence regarding the "Bloody Mary" assault, but did not present evidence defending against any other incidents of sexual abuse. The State in final argument relied specifically on the "Bloody Mary" offense in asking the jury to convict. Appellant, having presented no direct evidence contradicting the other alleged incidence of sexual abuse, attacked the plausibility of S. M.'s entire testimony. It can be fairly seen from the record then that appellant presented all of the defensive evidence that he had to defend himself. It can also be fairly seen that appellant was on notice of which sexual assault the State was proving for conviction. Armed with this notice, appellant's attorney could proceed with three tactical advantages which would be lost were an election made: 1) he could argue (as he did) that the entirety of the victim's testimony is unbelievable, and thus the jury should not give credence to her; 2) he could argue that the jury must be unanimous as to which incident it was convicting on, and how could they be if the state could not even decide itself which to rely on; and 3) he could ensure that jeopardy would bar any further prosecution of his client should appellant prevail at trial. Any or all of these considerations may be seen as sound trial strategy — strategy made all the more seemingly wiser by the perceived fact that the State was relying on the January 2001 incident, and thus there was little to gain by formalizing that reliance with an election. Tactical decisions that do not fall below an objective standard of reasonableness will not be questioned on appeal absent a showing that, from all appearances, the decision has no plausible basis in trial strategy or trial tactics. See Derreck, 773 S.W.2d at 273. Such is not the case here. The record does not contain trial counsel's explanation for why counsel did not force the State to elect. See Mallett, 65 S.W.3d at 63. Moreover, foregoing an election had a basis in trial strategy that is plausible. As such, we believe that appellant has failed to carry his burden under the first prong of the Strickland test. Point of error number one is overruled. In point of error number two, appellant complains that his attorney did not object when the State impeached J. M. J. M. was S. M.'s youngest sister and was one of the players of the "Bloody Mary" game. When called by the State, J. M. testified that after being sent to the garage to play, she unexpectedly returned to the house and went to S. M.'s room. There she saw the victim in bed with a boy named "Peanut" (apparently having intercourse). Expecting different testimony, the prosecutor asked "Do you remember telling me it was your dad and [S. M.] in her room," to which J. M. replied, "I thought it was him, but it wasn't." Earlier, leading up to this exchange, the prosecutor asked J. M., "And do you remember telling me about somebody else in that room?" Appellant's attorney objected "to this line of questioning by the prosecutor." The trial court overruled the objection and the questioning proceeded. On appeal, appellant maintains that had his attorney objected to the prosecutor asking about the prior statement J. M. had made to him, and specifically objected under Rule 403, then the trial court would have excluded J. M.'s earlier statement that it was appellant, not Peanut, who was in bed with S. M. We disagree. The trial court had already overruled appellant's objection to the line of questioning concerning what J. M. had previously told the prosecutor. There is no indication in the record that a second, even more specific, objection would have drawn a different reply. Moreover, we perceive that the trial court would have been in error had the objection been sustained. In measuring admissibility under rule 403, we first consider whether, and to what extent, the proffered evidence had probative value under rule 401. See Montgomery v. State, 810 S.W.2d 372, 375, (Tex.Crim.App. 1991). The court of criminal appeals has given the following non-exclusive list of examples of what the relevant criteria for the evaluation of the probative value of offered evidence under rule 401 should be: the importance for which the evidence is offered; the availability of other means of proof; the inherent or relative probative value of the evidence; and, other facts appropriate and unique to the circumstances of the case. See Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App. 1991). In this case, because S. M.'s testimony was largely uncorroborated, her credibility was critical to the State's case. On direct examination, she testified that during the "Bloody Mary" incident, J. M. came into her room and saw her in bed with appellant. When J. M. took the stand and denied that this was true, saying it was Peanut who was in bed with S. M., this was a blunt challenge to S. M.'s testimony. There was no mistaking the time or place of the event, so the testimony of one of the sisters had to be either mistaken or intentionally inaccurate. It was thus very important for the prosecutor to impeach J. M. with her previous statement and to follow up, as the prosecutor did, with questions that revealed J. M. had discussed her testimony with her mother the night before (the mother was not a supportive State witness). This places a high probative value upon the impeachment. No other evidence could have had the same counter effect as J. M.'s prior inconsistent statement. J. M. never wavered from her trial testimony. Because J. M. had given an unsworn incriminating statement before trial and delivered sworn, exculpatory trial testimony, the jury could deduce that J. M.'s credibility was suspect. This would diminish the weight of both her statements, having an arguably equally negative impact on the State's and the appellant's theories of the case. As such, it can hardly be said that the prejudicial effect of impeachment evidence substantially outweighed the probative value to the proponent of the evidence. As the foundation to his point of error, appellant asks us to speculate that had his attorney objected to the specific impeachment complained of, the trial court would have sustained the objection. For the reasons above stated, we believe that it would be wrong to do so. Therefore, regardless of whether the attorney should have objected again, appellant has failed in his burden to meet the second part of the Strickland test: that there exists a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See Strickland, 466 U.S. at 687, 694. Appellant's second point of error is overruled. We affirm the trial court's judgment.
S. M. testified she was beginning seventh grade on the trial date, August 15, 2001. S. M.'s mother testified the family moved from a two-bedroom home to a three bedroom home in April 1999. S. M. testified she was living in the three-bedroom house when the assaults began. Thus, it appears from the record that the assaults must have begun in April or May of 1999.
However, to preserve error under a State constitutional provision, a defendant must present specific arguments and authorities supporting his contentions under the Texas Constitution. See Brooks v. State, 990 S.W.2d 278, 288 (Tex.Crim. App. 1999). This Appellant has not done.
After a hide-and-seek game called "Bloody Mary" that the victim's two sisters were told to go play while an assault was being carried out.
Appellant complains that the failure of the State to elect might have caused the jury to arrive at a less than unanimous verdict, in that some might have voted for his guilt for the "Bloody Mary" incident, some for the 1999 incident, and still some guilty for any of the other "numerous" times S. M. testified she was sexually assaulted. If this had happened, the verdict would not have been unanimous. See Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App. 2000) (op. on reh'g). However, the jury was instructed that extraneous offenses were not to be considered as evidence of guilt, but rather could only be considered in as much as they used them to determine motive, intent or absence of mistake. This instruction together with the apparent reliance of the State on the "Bloody Mary" incident furnished the same protections a formal election and limiting instruction would have offered.
RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON SPECIAL GROUNDS: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence. TEX.R. EVID. 403.
RULE 401. DEFINITION OF "RELEVANT EVIDENCE:" "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX.R. EVID. 401.