Nos. 01-08-00107-CR, 01-08-00108-CR
February 12, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 177th District Court Harris County, Texas, Trial Court Cause Nos. 1038726 and 1038727.
Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.
SHERRY RADACK, Chief Justice.
A jury convicted appellant, Eric Steven Spiller, of two charges of sexual assault of a child, and the trial court assessed punishment at seven years' confinement for each offense. See Tex. Penal Code Ann. § 22.011(a)(2) (Vernon 2004). In two issues relating to the punishment phase of the trial, appellant contends that (1) his trial counsel rendered ineffective assistance, when, during the punishment phase, his trial counsel failed to object to numerous extraneous offenses, and (2) the trial court erred in cumulating his sentences. We affirm.
FACTUAL BACKGROUND
On January 31, 2005, appellant, a deputy with the Harris County Constable's Office, responded to a call from the Roberts' residence. Ms. Roberts called the police after her 15-year-old daughter Jane denied breaking her bedroom window. When appellant arrived at the Roberts' residence, he spoke with Jane who was crying and upset. Before leaving, Ms. Roberts testified that appellant told her the Constable's Office had a juvenile mentor program to help children who were having problems and that he would be happy to begin mentoring Jane immediately. However, a sergeant at the Harris County Constable's Office testified that there was, in fact, no such mentor program. The next day, appellant went to the Roberts' residence when Jane was home alone. Jane testified that appellant eventually made it clear that he wanted a sexual relationship with her. Jane testified that she began routinely having sexual intercourse with appellant at the Roberts' home when her mother was not there. Ms. Roberts became concerned when she realized appellant was coming over to her house when she was not there. After talking to neighbors and friends, Ms. Roberts discovered the amount of time appellant was spending with her daughter. On February 25, 2005, Ms. Roberts called the Constable's Office in an attempt to stop appellant from seeing her daughter. Sergeant Moore testified about his investigation of Ms. Roberts' complaint against appellant. He examined the appellant's work records and questioned him about his visits to the Roberts' residence. Appellant's daily activity reports, which had been examined by Sergeant Moore, were entered into evidence. Moore told appellant that conversations with a juvenile were supposed to be recorded and that he was to stop visiting the Roberts' residence. At this time, Deputy Smith with the Constable's Office took a statement from Ms. Roberts and also told appellant to stay away from Jane. Jane and one of her high school friends, Karla, testified that, despite being told to stop, appellant and Jane continued to see each other and to talk on the telephone. Ms. Roberts testified that after spotting Jane with appellant in his patrol car, she called the Constable's Office again to report appellant. Several officers went to the Roberts' residence and questioned Jane about where she had been, but Jane would not tell them. Sergeant Moore received a statement from Jane's friend, Karla, that led him to believe that appellant and Jane were involved in a relationship. Because appellant had disobeyed orders and lied about it, appellant was forced to resign from the Constable's Office on March 10, 2005. Ms. Roberts testified that in August of 2005, she met with appellant's wife to discuss Jane's and appellant's relationship. At this time, Jane finally admitted to her mother and appellant's wife that she had been having sex with appellant. Ms. Roberts and Jane then went to the Constable's Office and told the officers about Jane's sexual relationship with appellant. Moore testified that, as a result of his meeting with Jane, he reported appellant to the Juvenile Sex Crimes Division of the Harris County Sheriff's Department. Jane gave a statement to Sex Crimes Detective P. Klim. Klim testified that during her investigation she recovered a receipt in appellant's name from a particular hotel that corroborated what Jane had told her. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first point of error, appellant contends that his trial counsel rendered ineffective assistance when, during the punishment phase, his trial counsel failed to object to evidence that appellant (1) sexually harassed co-worker Deputy Panell, (2) began a sexual relationship with his future wife when she was 15 years old, (3) developed sexual relationships with several other minor girls, and (4) assaulted a former girlfriend, Jennifer Carroll. Specifically, appellant argues that due to his trial counsel's failure to request a hearing outside the presence of the jury to determine if the extraneous offenses were proven beyond a reasonable doubt, the State was "allowed to create an inaccurate picture of appellant by hearsay, innuendo and suggestion, without proof beyond a reasonable doubt." Because appellant's counsel did not request a hearing, appellant argues that counsel was ineffective. A. The Law
To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, an appellant must prove by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness. See id. at 687-88, 104 S. Ct. at 2064; Ex parte Ellis, 233 S.W.3d 324, 330 (Tex.Crim.App. 2007). Second, an appellant must show that counsel's deficient performance prejudiced or harmed his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This requires a showing that counsel's errors undermined the confidence in the result from trial. Ex parte Ellis, 233 S.W.3d at 330; Jaenicke v. State, 109 S.W.3d 793, 797 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). An appellant bears the burden of overcoming the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Ex parte Ellis, 233 S.W.3d at 330 (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)). B. Deficient Performance
The Court of Criminal Appeals has stated that appellate courts should not find counsel ineffective unless the counsel's performance was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). Thus, any alleged ineffectiveness must be founded and demonstrated in the record. Thompson, 9 S.W.3d at 813-14. As a result, "the record on direct appeal is in almost all cases inadequate to show that counsel's conduct fell below an objectively reasonable standard of performance." Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005); see also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) ("rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation"). In this case, there was no motion for a new trial and there is nothing in the record that explains why counsel failed to object or request a preliminary hearing regarding the admissibility of the evidence of extraneous offenses during the punishment phase. This Court has held that when the record is silent, the court will not speculate about trial counsel's strategy or reasoning to find counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Appellant argues that no motion for a new trial was necessary in this case as counsel's ineffective assistance can be discerned on direct appeal. He contends that the record affirmatively demonstrates that counsel was ineffective because no reasonable attorney would have decided against requesting a hearing to determine whether the evidence established beyond a reasonable doubt that appellant committed the extraneous offenses. Appellant specifically asserts that his counsel was ineffective for failing to object or request a hearing to determine whether appellant committed or was involved in the following three bad acts.1. Sexual Harassment of Deputy Panell
Appellant was Deputy A. Panell's supervisor at the Constable's Office during the summer of 2002. Deputy Panell testified for the State during the punishment hearing about her dealings with appellant. She testified that appellant continuously pursued a romantic relationship with her despite the fact that she made had it clear that she was not interested. As appellant got increasingly aggressive, Deputy Panell became very uncomfortable, so much so that she avoided any situation in which she would be alone with appellant. Deputy P. Geraci also worked with appellant and Deputy Panell at the Constable's Office. He testified about one instance that made him uncomfortable, in which he overheard appellant make comments of a sexual nature to Deputy Panell. Eventually, another co-worker reported the harassment to the Constable's Office. Assistant Chief L. Shiflet testified about his investigation of the sexual harassment complaint against appellant. As a result of his investigation, Shiftlet recommended several options to the chief deputy, including written reprimand, transfer, suspension, sexual harassment training, a reduction in rank, or all of the above. Appellant was ultimately suspended for 3 days, required to attend sexual harassment training, transferred to the other end of the district, and demoted. 2. Sexual Relationship with Denise Spiller when she was 15 years old
During Deputy Panell's testimony, she stated that appellant told her that he began having sex with his future wife, Denise Spiller, when she was 15 years old. Deputy Geraci corroborated her testimony, stating that he heard appellant specifically state, "I've been screwing that bitch [his wife] since she's 15 years old." Denise Spiller's mother, a defense witness, admitted on the stand that her daughter developed a crush on the appellant when she was about 15 or 16 years old, but she denied having any knowledge of a sexual relationship between her daughter and appellant before her daughter was 17 years old. 3. Sexual Relationships with several other minors
Appellant's ex-wife, Gina Patino, testified that during their one year of marriage they first began having marital problems because of appellant's involvement with a young woman named Jennifer Carroll. Ms. Patino believed that Jennifer was in high school at this time. Ms. Patino also heard appellant mention a high school student named Faron. When appellant was questioned about how he came to befriend the high school girl, he told Ms. Patino that he met Faron on a police call and was "trying to mentor her." After Faron died in a car accident, Ms. Patino testified that appellant's reaction was very odd, in that he was extremely upset and continued to visit her parents. Ms. Patino found his actions to be inconsistent with what appellant had told her about the nature of their relationship. During their subsequent separation, Ms. Patino found letters at the appellant's apartment from a young woman named Denise. These letters included the young woman's age and the date. Ms. Patino then turned the letters over to the Constable's Office where appellant worked because she was afraid that he was "being with minors sexually." This extraneous offense evidence was offered by the State pursuant to article 37.07, section 3(a) of the Texas Code of Criminal Procedure. Pursuant to section 3(g) of Article 37.07, the State filed a notice of intent to offer evidence of extraneous offenses or bad acts in response to appellant's request for notice of intent to introduce such evidence. The State notified appellant that it intended to introduce evidence that appellant sexually harassed Deputy Panell, that this resulted in discipline by the Constable's Office, and that appellant had committed the offense of sexual assault of a child, Denise Spillers. Appellant claims that his "trial counsel appeared to take no notice of this information." However, counsel called several live witnesses to testify during the punishment phase of the trial. During the punishment hearing, the jury heard live testimony from appellant's mother-in-law, older brother, pastor, co-worker, and a probation officer, as well as a number of friends. All these witnesses testified to appellant's good character and his eligibility for probation, and gave their opinion that appellant was a good candidate for probation. Counsel presented the trial court with favorable character evidence of appellant to cast doubt on the extraneous offense testimony produced by the State. In fact, Denise Spiller's mother refuted the allegation that appellant and her daughter began having a sexual relationship before her daughter was 17 years old. Appellant further contends that trial counsel should have "raised an objection and sought a hearing outside the jury's presence" regarding the admissibility of the extraneous offense testimony. It is true that the trial court must make a threshold determination whether there is sufficient evidence from which the jury could find beyond a reasonable doubt that an extraneous offense was committed. Mitchell v. State, 931 S.W.2d 950, 953-54 (Tex.Crim.App. 1996). However, the jury actually decides whether the State met its burden of proof. Id. Moreover, the trial court's threshold determination need not be made during the course of a hearing. Id. at 954; Welch v. State, 993 S.W.2d 690, 697 (Tex. Ap.-San Antonio 1999, no pet.). The State's written notice of what it intends to prove has been held to provide sufficient information to the trial court from which to make this preliminary determination. Welch, 993 S.W.2d at 697. See also Arzaga v. State, 86 S.W.3d 767, 781-82 (Tex.App.-El Paso 2002, no pet.) (finding prosecutor's statement as to how she intended to prove extraneous offenses through witness testimony sufficient for trial court to make initial determination). Here, the trial court was familiar with the case, having presided over the preliminary matters, and the State's written notice of intent to offer the extraneous offense evidence provided a detailed description of the offenses. Even if counsel had requested a hearing, the court was not obligated to grant the request because it is not required to hold a hearing before making its initial decision. See id. Furthermore, the jury was correctly charged that it could only consider the extraneous offenses if the State proved them beyond a reasonable doubt. There was sufficient evidence of the extraneous offenses for the jury to find that appellant committed the bad acts beyond a reasonable doubt. The failure of trial counsel to object to admissible evidence does not constitute ineffective assistance. McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992). Appellant's trial counsel objected numerous times during the testimony regarding the extraneous offenses on the basis of hearsay, relevance, and other proper legal bases. Yet, appellant argues that an objection based on insufficient proof was necessary because "the [State's] witnesses simply made assertions about things of which they had no personal knowledge." The State provided testimony from Jennifer Carroll, Deputy Panell, Deputy Geraci, and Chief Shiflet of events that they themselves witnessed or of which they had first hand knowledge. Appellant also complains about the testimony of Deputy Panell and Deputy Geraci regarding the appellant's alleged statement that he began having sex with his wife, Denise Spillers, when she was 15 years old. In Padron v. State, this Court held that corroboration of a defendant's extrajudicial admission is not required. 988 S.W.2d 344, 346 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The appellant in Padron argued that his extrajudicial admission alone was insufficient to prove that he committed the extraneous offense because the State offered no corroborating evidence, thereby failing to prove the offense beyond a reasonable doubt. Id. During the punishment hearing, a witness testified to hearing the appellant state that he had stolen marihuana; the witness also testified that she later saw the appellant with a large quantity of marihuana in his possession. Id. The court found that based on the witness' testimony, the jury could have reasonably concluded that appellant in fact stole the marijuana. Id. Similarly, the jury in this case could reasonably have concluded that appellant began having sex with Denise Spillers when she was only 15 years old based on his own statements, to which deputies Garaci and Pannel both testified. As a result, we conclude that appellant has failed to meet the first prong of the Strickland test. We thus overrule point of error one. CUMULATION OF SENTENCES
In his second point of error, appellant argues that the trial court's cumulation of his sentences violated his rights to have a jury assess his punishment and to due process. The State filed a motion to cumulate appellant's two seven-year sentences. The trial court granted this motion and ordered appellant to begin serving one sentence after the other sentence had been served. Appellant acknowledges that "current law is contrary to [his] position." However, appellant argues that case law to the contrary should be overruled because the "force of logic and reason are with him." This Court has held that in order to preserve a complaint as to the cumulation of sentences on appeal, the appellant must "either object at the time of sentencing or complain in a motion for new trial." Deal v. State, 2007 WL 2874796 at *3 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (memo op., not designated for publication) (citing Mendenhall v. State, 15 S.W.3d 560, 567 (Tex.App.-Waco 2000) aff'd, 77 S.W.3d 815 (Tex.Crim.App. 2002)). Similar to the appellant in Deal, appellant in this case neither objected at the time of sentencing, nor complained in a motion for a new trial. Thus, appellant's point of error regarding the cumulation of sentences is not preserved for appellate review. CONCLUSION
We affirm the judgments of the trial court.