Veytovichv.State

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTHJan 28, 2016
NO. 02-14-00212-CR (Tex. App. Jan. 28, 2016)

NO. 02-14-00212-CR

01-28-2016

MICHAEL VEYTOVICH APPELLANT v. THE STATE OF TEXAS STATE


FROM 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-1967-D MEMORANDUM OPINION

See Tex. R. App. P. 47.4.

Appellant Michael Veytovich appeals from his convictions for one count of continuous sexual abuse of a child and five counts of sexual assault of a child and argues that trial counsel was constitutionally ineffective. We disagree and affirm the trial court's judgment.

I. BACKGROUND

Appellant does not challenge the sufficiency of the evidence to support his conviction and, therefore, does not include a recitation of the evidence admitted at trial in his briefs. We likewise will not engage in an incident-by-incident recounting of the evidence regarding Appellant's sexual offenses against Amber, a child younger than seventeen who was not appellant's spouse. It is sufficient at this point to state that a jury found Appellant guilty of one count of continuous sexual abuse of Amber occurring between September 1, 2009 and October 27, 2009. See Tex. Penal Code Ann. § 21.02 (West Supp. 2015). The jury also convicted Appellant of five counts of sexual assault of Amber occurring on November 30, 2009, December 30, 2009, May 15, 2011, January 10, 2012, and June 28, 2012. See id. § 22.011 (West 2011). The evidence upon which the jury based its verdicts showed that Appellant, who was Amber's adopted father, began touching Amber's sexual organ and having her watch pornographic videos with him beginning when Amber was in the fourth grade. Over a period of five years, Appellant's sexual abuse of Amber progressed to oral sex and, eventually, vaginal sex. Because Appellant did not wear condoms, Appellant would make Amber take pregnancy tests. When Amber finally told her mother about the abuse, Appellant was having vaginal sex with Amber almost every day. Appellant's DNA was found on Amber's underwear and in her vagina.

We use an alias for the complainant and her family members. See Tex. R. App. P. 9.10.

On appeal, Appellant initially argued that he was denied the effective assistance of counsel at a critical stage of trial after his retained trial counsel failed to file a motion for new trial after filing a motion to withdraw from his representation of Appellant. We abated the appeal to allow appointed Appellate counsel to file a motion for new trial, which occurred. See Cooks v. State, 240 S.W.3d 906, 910-11 (Tex. Crim. App. 2007). In his motion, Appellant argued that trial counsel was ineffective by failing to investigate, by failing to call favorable guilt-innocence and punishment witnesses, by failing to communicate with Appellant, by being unfamiliar with the applicable law, and by failing to request DNA testing. The trial court held a three-day, evidentiary hearing on Appellant's motion and denied it without making any findings of fact. See Tex. R. App. P. 21.8(b) (noting trial court "may" make oral or written findings of fact in ruling on new-trial motion). Appellant now argues in three points in his supplemental appellate brief that trial counsel rendered constitutionally ineffective assistance in three specific instances: (1) he failed to impeach Amber with her out-of-court statement to Detective Dena Williams, which differed from her trial testimony and her out-of-court statement given to a sexual-assault nurse examiner the same day she gave her statement to Williams; (2) he failed to discover, interview, and call a character witness; and (3) he erroneously implied to the jury during closing arguments at punishment that Appellant would be eligible for early release on parole.

This action disposed of all of Appellant's points raised in his original brief.

The record does not reflect that any party requested that the trial court make findings of fact.

II. EFFECTIVENESS OF TRIAL COUNSEL

A. STANDARD AND SCOPE OF REVIEW

The test to determine the effectiveness of counsel requires Appellant to show by a preponderance of the evidence that (1) counsel's representation fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for these unprofessional errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S. Ct. 2052, 2064-65 (1984); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). Review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). In our review of counsel's performance, we may consider the record from the hearing on Appellant's motion for new trial. See Barnett v. State, 344 S.W.3d 6, 13 (Tex. App.—Texarkana 2011, pet. ref'd).

Appellant does not argue that the trial court abused its discretion by denying his motion for new trial. He solely asserts that trial counsel was constitutionally ineffective.

B. APPLICATION

1. Guilt-Innocence Phase

Appellant first argues that trial counsel rendered constitutionally ineffective assistance when he failed to impeach Amber at trial with the statement she gave to Williams regarding the first instance of vaginal intercourse with Appellant, which was inconsistent with her trial testimony and with the statement she gave to the nurse examiner. At trial, Amber testified that Appellant first forced her to have vaginal sex in his bedroom on his bed, that she could not remember if he ejaculated, and that she took a shower after it was over. The nurse examiner testified at trial that Amber stated this offense occurred on her bed, that she bled "everywhere," and that she was in "a lot of pain." But in Amber's statement to Williams, Amber seemed to allege that the first instance of vaginal sex occurred in her bathroom.

It is not at all clear from Williams's report that the incident in the bathroom was the first instance of vaginal sex. The information Amber gave regarding the bathroom incident solely referred to oral sex between Amber and Appellant. The details Amber gave to Williams that roughly comport with her statement to the nurse examiner and her trial testimony regarding the first vaginal sex she had with Appellant show that Amber told Williams the first vaginal sex occurred in Appellant's room and that they showered afterward.

At the new-trial hearing, trial counsel testified that the impeachment Appellant now raises would have been seen as "beating up on somebody," that Amber was an uncooperative witness and repeatedly stated she did not remember details, and that he did impeach certain portions of her outcry statements. He further stated that this was a strategic decision and that he did not want to "help [the State] by clarifying" issues that Amber was unclear on during her testimony. This reasonable trial strategy comports with prevailing professional norms and does not show deficient performance by trial counsel. See Rivera v. State, 317 S.W.3d 480, 483 (Tex. App.—Amarillo 2010, no pet.); Davis v. State, 276 S.W.3d 491, 502 (Tex. App.—Waco 2008, pet. ref'd); Grantham v. State, 116 S.W.3d 136, 147 (Tex. App.—Tyler 2003, pet. ref'd).

Second, Appellant asserts that counsel failed to interview and call as a character witness Jimmy Cunningham, the principal of the elementary school attended by Appellant's biological children, who stated in an affidavit admitted at the new-trial hearing that Appellant was "involved in his children's education, wanted to be informed and understand the intricacies of what was being taught, and how his children were being taught." At the hearing, trial counsel testified that he did not interview Cunningham because "other people at the schools" that he talked to "were well aware of the situation and were not overly pleased with [Appellant]." Trial counsel did not believe such testimony "was going to add anything." This was a reasonable, strategic decision that we may not second-guess. See Marinos v. State, 186 SW.3d 167, 181 (Tex. App.—Austin 2006, pet. ref'd).

Amber was in high school at the time Appellant's two biological children attended this elementary school.

2. Punishment Phase

Finally, Appellant argues that trial counsel was constitutionally ineffective when he implied to the jury at punishment that Appellant would be eligible for early release on parole, which was inapplicable to Appellant's conviction for continuous sexual abuse. See Tex. Gov't Code Ann. § 508.145(a) (West Supp. 2015). During closing jury argument, trial counsel urged the jury to sentence Appellant to 25 years' confinement, which was the minimum possible sentence for continuous sexual abuse of a child, because "he has to do at least 12 of that." In its rebuttal argument, the State clarified to the jury that Appellant would have to serve "day for day" and that his sentence for continuous sexual abuse of a child would not be reduced by parole. The State further stated that any parole eligibility would not commence until after Appellant had served the entire sentence imposed for continuous sexual abuse of a child. Indeed, the trial court included the statutorily required parole instruction in its punishment charge for the sexual-assault-of-a-child convictions, but did not give a parole instruction in its punishment charge for continuous sexual abuse of a child. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4 (West Supp. 2015).

As the trial court charged the jury, the punishment range for each count of sexual assault of a child was "any term of not more than twenty (20) years nor less than two (2) years."

Appellant has failed to show prejudice arising from trial counsel's argument. Although trial counsel argued that Appellant's sentence for continuous sexual abuse of a child could be reduced by parole, any possible confusion was ameliorated by the State's clarifying argument and the jury charges. Cf. Sierra v. State, No. 04-01-00455-CR, 2003 WL 1973159, at *6 (Tex. App.—San Antonio 2003, pet. ref'd, untimely filed) (mem. op., not designated for publication) (holding counsel not ineffective where any wrong impression caused by questions regarding defendant's prior offense were later corrected by other evidence and in the State's closing argument). Similarly, any argument that the jury was confused by trial counsel's parole argument, which Appellant argues was shown by the jury's note asking if Appellant would be required to "serve [the] exact time" assessed for continuous sexual abuse of a child, is insufficient standing alone to show that counsel was ineffective. See Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007) ("Possible confusion by the jury [as a result of the State's incorrect jury argument regarding the application of good-time credits to the defendant], however, is insufficient in and of itself to show that trial counsel's performance was ineffective for neglecting to address that confusion."); cf. Brown v. State, No. 01-15-00042-CR, 2015 WL 7739082, at *3-5 (Tex. App.—Houston [1st Dist.] Dec. 1, 2015, no pet. h.) (mem. op., not designated for publication) (concluding counsel not ineffective for informing defendant of an incorrect sentencing range because trial court correctly admonished defendant of correct range of punishment before accepting defendant's guilty plea).

Even if any confusion by trial counsel's parole argument had not been ameliorated, Appellant cannot show that but for the argument, the result of the punishment phase of trial would have been different. The jury assessed the maximum available punishment for each offense. The evidence at trial showed that Appellant sexually abused Amber for a long period of time, beginning when she was in fourth grade. After the abuse progressed from Appellant touching Amber's sexual organ to vaginal sex, Appellant forced Amber to have sex with him almost daily. Because Appellant would not wear condoms, he would have Amber take pregnancy tests. On the day Amber reported the abuse, evidence from Amber's sexual-assault exam showed that Appellant's DNA was present in Amber's underwear and in her vagina. This evidence supported the jury's decision to assess the maximum sentence for continuous sexual abuse of Amber as well as for each sexual assault. See Jaenicke v. State, 109 S.W.3d 793, 798-99 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (op. on reh'g); Artrip v. State, No. 07-01-0201-CR, 2002 WL 242532, at *6 (Tex. App.—Amarillo Feb. 20, 2002, pet. ref'd) (mem. op., not designated for publication).

III. CONCLUSION

We conclude that Appellant has failed to show by a preponderance of the evidence that trial counsel was constitutionally ineffective. Therefore, we overrule Appellant's points raised in his supplemental brief and affirm the trial court's judgment.

We would like to note that Appellant's appointed appellate counsel, Stan Goodwin, has represented Appellant throughout this appeal consistent with the highest standards of our profession. --------

/s/ Lee Gabriel


LEE GABRIEL


JUSTICE PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: January 28, 2016