Smith v. State

Full title: DAVID M. SMITH JR., v. THE STATE OF TEXAS

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: May 25, 2005

No. 04-03-00544-CR (Tex. App. May. 25, 2005)

Opinion

No. 04-03-00544-CR

Delivered and Filed: May 25, 2005. DO NOT PUBLISH.

Appeal from the 81st Judicial District Court, Atascosa County, Texas, Trial Court No. 02-05-0167-Cra, Honorable Donna S. Rayes, Judge Presiding. Affirmed.

Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.

MEMORANDUM OPINION

SARAH B. DUNCAN, Justice.

David Smith Jr. appeals the judgment convicting him of aggravated sexual assault and sentencing him to twenty-five years' confinement. We affirm.

Factual and Procedural Background

In late 1999 and early 2000, Smith assaulted thirteen-year-old D.M. by having her perform oral sex on him. Smith was D.M.'s step-father and, at the time of the assault, lived with D.M. and her mother, Cynthia Smith. In June of 2001, D.M. went to live with her father, Dan Mauldin, and his girlfriend, Christine Berryhill. In November 2001, D.M. told Christine about the assault. In February 2002, after Dan was told of the assault, he reported the incident to the police.

Sufficiency of the Evidence

Smith argues the evidence is legally and factually insufficient to support the jury's verdict. Because no physical evidence of the assault was offered, Smith's conviction rests upon the testimony of various witnesses. Smith contends D.M.'s "nonchalant" attitude during her testimony, her testimony that she enjoyed drama and acting, and her testimony that she bought "candy and stuff" with the money Smith gave her after the assault, calls into question the legitimacy of her allegations against him. Smith contends D.M.'s allegations were further weakened by the fact that Christine told no one about the assault until several months after D.M.'s outcry and Christine arranged for D.M. to return to her mother and Smith's house over the holidays following the assault.

Standards of Review

When considering a legal sufficiency challenge, this court must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed. 560 (1979); see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131 (2000). In an appellate review of the sufficiency of the evidence, the court must consider all the evidence the jury was permitted, rightly or wrongly, to consider. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App. 1991) (stating court of appeals should have considered inadmissible outcry statement in conducting sufficiency review). In our review of the factual sufficiency of the evidence, we view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must defer to the factfinder, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain, 958 S.W.2d at 407. In both sufficiency reviews, the trier of fact may draw reasonable inferences and is the exclusive judge of the witnesses' credibility and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832 (1997).

Discussion

D.M. said she performed oral sex on Smith twice by taking his penis into her mouth. The first incident occurred in the fall of 1999 in Smith's home office. Smith did not ejaculate, and D.M. testified that after she was done, she just got up and left, "[i]t really wasn't some big ordeal I guess." D.M. said Smith later gave her money. The second incident occurred a few months later, in early 2000 in D.M.'s bedroom in the late evening. This time, both Smith and D.M. disrobed and lay on the floor. Smith ejaculated and offered D.M. money if she would swallow, which she attempted but was unable to do. D.M. said Smith's semen had a particular taste and feeling. Smith later told D.M.'s mother to give D.M. a "skip day" from school. D.M. also described an incident in which Smith videotaped her while she posed naked. D.M. said Smith was circumcised. D.M. told Christine about the assault in November 2001. Christine admitted that, although she did not want D.M. to return to Smith and her mother's home over the Christmas holidays, she could not prevent the trip because she had no custodial authority over D.M. Christine said she could have prevented the trip only by telling Dan about the assault, but D.M. begged her not to immediately tell her father. Instead, D.M. and Christine agreed that if Smith "tried anything," D.M. would call 911 and D.M. would stay in touch with Christine. Dan was told about the assault in February 2002. Neither Christine nor Dan gave any details about the assault, other than to tell the jury that D.M. told them she performed oral sex on Smith. Smith's mother said she walked into a room in which several of her grandchildren, including D.M., were playing. She said the children told her they were play-acting and D.M. was acting as a prosecutor. She could not remember when this occurred, except to say she thought it was sometime over the Christmas holidays. Cynthia Smith said she did not believe D.M. She admitted she burned videotapes after Dan told her about D.M.'s accusations, but she said she did not watch the tapes. As to Smith's suicide attempt, Cynthia said she was not convinced it was suicide. Cynthia confirmed Smith was circumcised. We conclude this evidence is legally and factually sufficient to support the jury's verdict.

Ineffective Assistance of Counsel

In several issues on appeal, Smith asserts he was denied his constitutional right to effective assistance of counsel. The trial court held a hearing on Smith's motion for new trial, at which time Smith alleged he received ineffective assistance of counsel because his trial attorney did not inform the trial court that two jurors slept during trial and counsel failed to properly address why Smith attempted suicide. On appeal, Smith reasserts these allegations and makes new allegations that counsel was ineffective because she failed to raise objections to (a) the admission of D.M.'s outcry statement, (b) the admission of extraneous offense evidence, (c) the bolstering of D.M.'s testimony when the State questioned other witnesses, and (d) the admission of two photographs of D.M. Smith's trial counsel testified at the hearing on the motion for new trial.

Standard of Review

Smith has the burden to prove by a preponderance of the evidence that: (1) counsel's performance was deficient, i.e., her assistance fell below an objective standard of reasonableness; and (2) Smith was prejudiced, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). However, the constitutional right to effective assistance does not mean errorless counsel. See Hernandez v. State, 726 S.W.2d 53, 58 (Tex.Crim.App. 1986). Therefore, an appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.

"Outcry" Statement

Smith argues his trial counsel was ineffective because she failed to raise objections to the admission of D.M.'s outcry statement. According to Smith, D.M.'s outcry statement was inadmissible hearsay because she was thirteen years old at the time of the assault and her statement was therefore improperly admitted. See Tex. Code Crim. Proc. Ann. art. 38.072, § 1 (Vernon 2005) (statement may be admissible when made by child twelve years old and younger). Smith also contends the statement was improperly admitted because the State failed to provide notice of its intent to use the statement and the trial court did not conduct a hearing to determine whether the statement was reliable based on time, content, and circumstances. See id. § 2(b). Smith contends he was harmed by counsel's ineffectiveness because (1) his conviction turned on the credibility of the witness and the testimony about the outcry corroborated and bolstered D.M.'s testimony and (2) the State's failure to provide notice impeded his ability to prepare for cross-examination of both D.M. and Christine. Smith does not explain how his defense was impeded; however, the State does not refute Smith's argument that the provisions of article 38.072 were not satisfied. Instead, the State argues the outcry statement was properly admitted as an excited utterance. A "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" may be admitted as an excited utterance exception to the hearsay rule. See Tex. R. Evid. 802, 803(2). The exception "is founded on the belief that statements made as a result of a startling event or condition are involuntary and do not allow the declarant an adequate opportunity to fabricate, thereby ensuring enough trustworthiness to fall outside the hearsay exception." Couchman v. State, 3 S.W.3d 155, 159 (Tex.App.-Fort Worth 1999, pet. ref'd). The general rule is that no single rigid principle governs the admissibility of statements under the excited utterance exception. See Jones v. State, 772 S.W.2d 551, 554-55 (Tex.App.-Dallas 1989, pet. ref'd). Instead, the inquiry is "`whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition' when the statement is made." Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex.Crim.App. 2005). Courts may consider "the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving." Id. at 187. Here, Smith assaulted D.M. in late 1999 and early 2000. D.M. made her outcry to Christine almost two years after the first assault. In Apolinar, the Texas Court of Criminal Appeals considered four days "a very long time between the startling event and the statement." Apolinar, 155 S.W.3d at 190. However, the State argues that the "startling event" in this case was a revelation made by Christine to D.M. See Aguilera v. State, 75 S.W.3d 60, 68 (Tex.App.-San Antonio 2002, pet. ref'd) (startling event that triggers an excited utterance need not necessarily be the crime itself). In June of 2001, D.M. went to live with her father and Christine. In November of 2001, D.M. and Christine were talking, when Christine told D.M. about an incident from her childhood. Christine said her father had been an alcoholic, and her mother shot him when he had threatened Christine with a gun. Christine explained to D.M. that people should not use negative things as an excuse and instead should "turn negative stuff into positive stuff." At this point, D.M. began to cry and she told Christine about the assault. This testimony indicates D.M. was upset by Christine's revelation. However, Christine also testified that D.M. said she decided to tell her about the assault because Christine "had shared some personal things with her so she felt like she could share some with me." D.M. testified she did not know why she told Christine about the assault, except that she felt comfortable with Christine and trusted her. See Apolinar, 155 S.W.3d at 190 (considering declarant's demeanor). We also consider whether D.M.'s statement to Christine was self-serving. D.M.'s mother testified D.M. was upset her brother had a car, and D.M. did not, and D.M. thought her mother favored her brother. D.M. freely admitted she did not get along with her mother. However, D.M. had already moved into her father's home when she made the outcry; therefore, nothing in the record indicates the outcry resulted because of a custody fight between D.M.'s parents or that D.M. fabricated the outcry as a means of achieving her goal of moving to her father's home. However, "where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process." Apolinar, 155 S.W.3d at 189 (citation omitted). Therefore, we look to the record for evidence that D.M. did not have a meaningful opportunity to reflect. See id. at 190. D.M. said she tried to tell her mother sometime in the Summer of 2001, but was unable to do so. D.M. explained that she and her mother were watching television when she informed her mother she wanted to go live with her father. When D.M.'s mother turned off the television, D.M. said, "I have something important I need to tell you." D.M. testified as follows:

Q. Did you actually get the words out to Cindy, to your birth mom?

A. No, sir. . . . Q. Why didn't you?

A. . . . I said, "I have something very important to tell you."

And she said, "Okay. Well, what is it?"

So I sat there for a minute trying to figure out what I was going to say and David walked in and he just stopped and looked at us and he gave a little speech saying he had done some things that he knows he shouldn't have and he's been a pretty horrible person but you know he's changed all that and then he walked out of the room.

. . . Q. Did you say anything more to Cindy? A. No, sir. Q. Why not? A. I didn't feel like she would believe me. This testimony indicates D.M. considered how and what to reveal about the assault several months before she made her outcry to Christine. We therefore conclude D.M. was not "still dominated by the emotions, excitement, fear, or pain of the event or condition" and "the foundation for the [excited utterance] exception, that the statement was made involuntarily without adequate opportunity to fabricate, does not exist." Apolinar, 155 S.W.3d at 186-87; Aguilera, 75 S.W.3d 63, 68 (holding inadmissible statement made one year after sexual abuse when complainant was scheduled to move back into the home of her mother and the defendant). Accordingly, we hold the trial court erred in admitting D.M.'s outcry statement to Christine. Because the trial court erred in admitting the outcry statement, trial counsel was ineffective in failing to object to Christine's testimony. However, Smith also must establish that he was prejudiced by counsel's error. Smith argues he was prejudiced and, in so doing, relies heavily upon this court's holding in Alvarado v. State, 775 S.W.2d 851 (Tex.App.-San Antonio 1989, pet. ref'd), that Alvarado was harmed by his trial counsel's ineffectiveness in failing to object to the complainant's mother's testimony about statements made by the complainant to a counselor, the counselor's testimony about what he was told by the complainant and what the complainant's brother told her about his own abuse at the hands of the appellant, the complainant's mother's testimony about what she told appellant's mother and sister, the testimony of a doctor about what he was told by the complainant, and evidence of an extraneous act committed by Alvarado on the complainant. Although Smith is correct that this court concluded that Alvarado was harmed by his trial counsel's errors, he fails to mention that in doing so, this court took pains to note that Alvarado was not "a case in which only a relatively small bit of evidence was improperly admitted. Here, the amount of evidence which the jury was improperly allowed to consider may be easily described as `overwhelming.'" Id. Indeed, this court noted that if the inadmissible evidence was disregarded, the remaining evidence consisted primarily of the complainant's and her younger brother's testimony, "which is a very small part of this record." Id. at 855. In this case, on the other hand, while D.M. testified in specific detail, Christine testified simply that D.M. told her the details of the assault; Christine was not asked to provide and did not offer any details to the jury. The posture of this case is thus wholly unlike that in Alvarado. We therefore hold that, because the same evidence elicited from Christine was also elicited in more detail from D.M., Smith has not established a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different.

Extraneous Offenses; Request for Mistrial; Improper Bolstering of Witness

Smith argues his trial counsel was ineffective because she failed to object to the admission of extraneous offense evidence and to evidence that Smith attempted suicide, failed to request a mistrial when the State violated the motion in limine, and failed to object to the bolstering of D.M.'s testimony when the State questioned certain witnesses or, if she did object, failed to request an instruction to disregard. Before trial, the court granted Smith's motion in limine requesting the prosecutor approach the bench before offering any evidence of extraneous offenses. During trial, at a hearing outside the jury's presence, the State requested permission to admit evidence of: (1) alleged sexual assaults by Smith against D.M. prior to the dates alleged in the indictment; (2) non-criminal sexual contact/relationships amongst the family as shown on a videotape of Smith and Cynthia performing sexual acts; and (3) pictures taken by Smith after the assault of D.M. in sexual positions. During this hearing, Smith's attorney explained her objections to each of the State's requests. The trial court allowed the State to offer evidence of the pictures taken of D.M., but excluded evidence of the alleged prior sexual assaults and the videotape of Smith and Cynthia. On appeal, Smith contends trial counsel was ineffective because she failed to object to testimony regarding this excluded evidence, other extraneous offense evidence, and testimony regarding Smith's attempted suicide, and because she failed to object to the State's bolstering of its witnesses. Smith points to fifteen instances in which he claims trial counsel was ineffective for not objecting or for not requesting an instruction to disregard after her objection was sustained. Smith contends it is "likely" the inadmissible testimony led the jury to assume Smith had committed other sexual offenses. As to counsel's failure to raise a bolstering objection, Smith contends he was harmed by counsel's ineffectiveness because his conviction turned on the credibility of the various witnesses and the testimony of these witnesses corroborated and bolstered that of D.M. "[T]he failure to object to inadmissible evidence, even extraneous offense evidence, does not necessarily constitute ineffective assistance." Greene v. State, 928 S.W.2d 119, 123 (Tex.App.-San Antonio 1996, no pet.). Here, Smith's trial counsel was not asked to explain these complained-of omissions at the motion for new trial hearing, and the record is otherwise silent as to counsel's possible strategies; therefore, we decline to speculate why counsel acted as she did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We may not "reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel's decisions." Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App. 2002); see also Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Because the record does not affirmatively demonstrate that these specific omissions were attributable to ineffectiveness, the presumption of reasonable professional assistance has not been defeated. Thompson, 9 S.W.3d at 813.

Photographs

Smith also contends his trial counsel was ineffective because she failed to object to the admission of two photographs of D.M., one showing D.M. when she was in kindergarten and the other showing D.M. about one year before the assault. Smith claims the photos were not relevant to the time period of the assault and, if relevant, should have been excluded because their probative value was outweighed by the danger of unfair prejudice, confusing the issues and misleading the jury. Smith contends he was harmed by the admission of the photos because they indicated to the jury that he assaulted D.M. at a much younger age. The State asserts the kindergarten picture was taken at about the time Smith became D.M.'s step-father and was relevant to the power Smith exercised over D.M., and the later picture was taken about one year before the assault and was a fair representation of D.M.'s appearance when she was assaulted. Again, because the record is silent as to defense counsel's possible strategies, we decline to speculate why counsel acted as she did. Thompson, 9 S.W.3d at 813.

Denial of Motion for New Trial

Smith argues the trial court abused its discretion in failing to grant his motion for new trial based on juror misconduct and ineffective assistance of counsel. As grounds for his juror misconduct claim, Smith alleges two jurors slept during trial. As grounds for his ineffective assistance claim, Smith contends trial counsel was ineffective because she did not inform the trial court about the allegations that two jurors slept during trial and thus missed critical testimony that would have assisted them in evaluating the credibility of the witnesses.

Standard of Review

We review a trial court's denial of a motion for new trial under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). We will not substitute our judgment for that of the trial court; instead, we decide whether the trial court's decision was arbitrary or unreasonable. Id. Accordingly, if there "is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue and there is no abuse of discretion in overruling the motion." Id. (citation omitted). We do not apply the Strickland test in a de novo fashion in our review of the trial court's denial of a motion for new trial based on ineffective assistance of counsel. State v. Gill, 967 S.W.2d 540, 542 (Tex.App.-Austin 1998, pet. ref'd). Instead, we review the trial court's application of the Strickland test for an abuse of discretion. Id. In doing so, we presume the trial court's ruling is correct, and the appellant has the burden of establishing the contrary. Lee v. State, 167 Tex. Crim. 608, 322 S.W.2d 260, 262 (1958).

Discussion

At the new trial hearing, two witnesses, both of whom were friends of Smith, testified that they saw two jurors sleeping during the guilt-innocence phase of trial. One of the witnesses said that after completion of the guilt-innocence phase but before closing arguments, she told Smith's trial counsel about the sleeping jurors. Smith's trial counsel testified she was told near the end of trial that at least one juror was sleeping, and it was not until after trial that she was told two jurors were sleeping. She said she attempted to observe for herself whether any juror was sleeping, but she was unable to do so. Counsel explained that because she did not see any juror sleeping, she did not raise the concern with the trial court. The State also presented the affidavit of one of the jurors alleged to have slept during trial. This juror unequivocally stated she did not sleep during trial. On this record, we hold the trial court did not abuse its discretion in denying Smith's motion for new trial. The trial court's judgment is affirmed.