No. 14-07-00473-CR
Opinion filed August 28, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 149th District Court Brazoria County, Texas, Trial Court Cause No. 49,012.
Panel consists of Justices YATES, ANDERSON, and BROWN.
LESLIE B. YATES, Justice.
Appellant Charles Richard Bernard appeals his conviction on five counts of aggravated sexual assault of a child. In a single issue, appellant claims he received ineffective assistance of counsel. We affirm.
I. Background
Appellant was indicted on five counts of aggravated assault of a child. The first two counts alleged that on or about February 1, 2005, appellant intentionally or knowingly caused his sexual organ to contact both the sexual organ and anus of A.B., appellant's step-daughter, a child under the age of fourteen. Counts three and four alleged that on or about February 1, 2005, appellant intentionally or knowingly caused his sexual organ to contact both the sexual organ and anus of E.B., appellant's step-daughter, a child under the age of fourteen. Count five alleged that on or about February 1, 2005, appellant intentionally or knowingly caused his sexual organ to contact the anus of J.H., appellant's son, a child under the age of fourteen. At trial, all three children testified to multiple instances of sexual abuse by appellant, consisting of genital penetration, anal penetration, and oral sex. A.B. testified that appellant touched her genitals with his finger and his genitals, touched his genitals to her bottom, and that he did this "a lot." He also put her mouth on his private parts on more than one occasion. The sexual assaults on A.B. occurred in the living room of the family's trailer home. E.B. testified that on multiple occasions, appellant touched his genitals to her genitals and her bottom. He also had her place his genitals in her mouth. J.H. testified that on more than one occasion, appellant touched his mouth, his hand, and his bottom to J.H.'s genitals and his genitals to J.H.'s bottom. Appellant also made J.H. put his mouth on appellant's genitals. The sexual assaults on E.B. and J.H. occurred in both the living room of the family's trailer and in a nearby abandoned trailer. E.B. and J.H. also testified that on more than one occasion, appellant instructed J.H. to have sex with his sisters. Appellant would show J.H. how to do it with one sister, and then at appellant's command, appellant and J.H. would switch sisters. A jury found appellant guilty on all five counts, and the trial court assessed punishment at fifty years in prison. Appellant filed a motion for new trial, alleging that he received ineffective assistance of counsel. After a hearing on the motion in which appellant's trial counsel testified, the trial court denied the motion. In his sole issue on appeal, appellant claims he received ineffective assistance because counsel failed to (1) conduct an adequate pretrial investigation, (2) have a sound trial strategy, (3) file a Rule 404(b) pretrial motion, and (4) request that the State make an election. II. Standard of Review
Ineffective assistance of counsel claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, appellant must show by a preponderance of the evidence (1) that counsel's representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 687-96; Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). A Strickland claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Where counsel's reasons for failing to do something do not appear in the record, we review counsel's conduct with great deference and without the distorting effects of hindsight. Id. Absent an opportunity for a trial attorney to explain his actions, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Id. We review a trial court's denial of a motion for new trial alleging ineffective assistance of counsel under an abuse of discretion standard. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). III. Analysis
Pretrial Investigation
Appellant first claims counsel was ineffective for failing to conduct an adequate pretrial investigation. A criminal defense lawyer has the responsibility to conduct a legal and factual investigation and to seek out and interview potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). An appellant who complains about trial counsel's failure to call witnesses must show the witnesses were available and that he would have benefitted from their testimony. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983); Melancon v. State, 66 S.W.3d 375, 381 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Appellant alleges that despite the availability of a court appointed investigator, counsel did not ask the investigator to interview witnesses. However, at the hearing on the motion for new trial, counsel testified that he had contacted the investigator and asked her to interview witnesses and that she had done so. Appellant also claims that counsel failed to locate and interview the complaining witnesses, A.B., E.B., and J.H., and their mother, as well as a doctor who allegedly examined the children two or three weeks after their outcry and found no evidence of sexual abuse. The record does not support appellant's assertions. Counsel testified that it was not possible to locate and interview the children and their mother before trial because the only contact information counsel had was a phone number in Arizona and all but the last subpoena the State attempted to serve on the mother and children were returned unserved. In addition, the children's mother did not testify at trial, and the record is silent as to how her potential testimony would have benefitted appellant. Finally, counsel testified that he learned about the doctor secondhand from appellant's mother and sister and that he had attempted to contact the doctor but was unsuccessful. Contrary to appellant's assertions, the record demonstrates that counsel utilized the investigator and made objectively reasonable attempts to locate and interview witnesses. See Ex parte McFarland, 163 S.W.3d 743, 754-55 (Tex.Crim.App. 2005) (concluding counsel was not ineffective despite failed attempts to locate potential witnesses). Accordingly, the trial court did not abuse its discretion in finding that appellant's failure to locate and interview the children, their mother, or the doctor did not constitute deficient performance. Trial Strategy
Appellant next claims that counsel failed to formulate a reasonable trial strategy. He claims that counsel's strategy primarily centered on the victims being unavailable to testify. In support of this assertion, appellant submitted an affidavit from the investigator in which the investigator claimed counsel told her that the case would "be a walk in the park because the mama and kids were somewhere in Arizona and they didn't have the money to come back for trial," and that "this is a walk. No one is going to show up and I am going to ask for a directed verdict." Appellant further claims counsel erroneously believed the State could not prove its case because it did not prove an exact date on which the alleged assaults occurred. Contrary to appellant's assertions and the investigator's affidavit, the record does not show that counsel's strategy consisted merely of relying on the victims not testifying or the State's failure to prove a date certain. Counsel testified that his trial strategy consisted of (1) ensuring that videotaped interviews of the children were not admitted because that would violate appellant's confrontation rights, (2) showing that appellant was never alone with the children, (3) attacking the State's medical and DNA evidence, (4) pointing out inconsistencies in J.H.'s testimony, (5) ensuring appellant did not testify, and (6) presenting character witnesses. Appellant's mother and sister testified to appellant's good behavior and that appellant was never alone with the children. Appellant's mother testified that the children had never complained to her about any abuse. Counsel attacked J.H.'s credibility by establishing that J.H. gave conflicting statements regarding the allegations of abuse. He also successfully challenged the State's DNA evidence and kept out evidence of a penis pump and photos of the abandoned trailer. The record reflects that counsel competently carried out a valid trial strategy. See Strickland, 466 U.S. at 689 (stating counsel's competence is not to be judged by hindsight); Johnson v. State, 176 S.W.3d 74, 79 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (concluding that just because a trial strategy did not work does not mean counsel was ineffective). We find that the trial court did not abuse its discretion in concluding counsel formulated a reasonable trial strategy. Extraneous Offense Evidence
Appellant next complains about counsel's failure to make a Rule 404(b) request. Texas Rule of Evidence 404(b) allows admission of evidence of other crimes, wrongs, or acts for purposes other than proving character, provided that upon timely request by the defendant, reasonable notice is given in advance of trial of the State's intent to introduce such evidence. The purpose of the notice requirement is to prevent surprise to the defendant by apprising him of the extraneous offenses about which the State intends to introduce evidence at trial. Hayden v. State, 66 S.W.3d 269, 272 (Tex.Crim.App. 2001). The record reflects that another attorney handled the case prior to appellant's trial attorney representing appellant and that the first attorney did file a Rule 404(b) motion. At the hearing, counsel testified that he relied on the pretrial motions filed by his predecessor. Moreover, because the State filed a Rule 404(b) notice several weeks before trial, giving appellant notice of the specific extraneous offenses the State intended to introduce, appellant cannot show prejudice. See Smith v. State, No. 01-05-01095-CR, 2007 WL 79475, at *7 (Tex.App.-Houston [1st Dist.] Jan. 11, 2007, pet. ref'd) (mem. op., not designated for publication) (holding failure to file Rule 404(b) motion when State gave pretrial notice was not ineffective assistance). Appellant also complains counsel was ineffective for failing to object to testimony from each child, request an instruction, and move for a mistrial when each child testified to multiple instances of sexual abuse. However, this testimony was admissible under article 38.37 of the Texas Code of Criminal Procedure to show the state of mind of the defendant and the child and to show the previous relationship between the defendant and child. See TEX. CODE CRIM. PROC. ANN. art. 38.37 (Vernon Supp. 2007); Hinojosa v. State, 995 S.W.2d 955, 957 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The failure to object to admissible evidence will not support a claim for ineffective assistance. McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992). The trial court did not err in denying the motion for new trial on these grounds. Election
Finally, appellant argues that counsel was ineffective for failing to require the State to elect the specific offense upon which it relied for conviction and for failing to object to the jury charge. The general rule is that where an indictment alleges one instance of sexual assault and the trial evidence shows more than one instance, the State must elect the offense upon which it relies for conviction. O'Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim.App. 1988). Upon timely request by the defense, the trial court must order the State to make an election, and failure to do so constitutes error. Id. at 772. Here, the State introduced testimonial evidence of multiple sexual assaults occurring in both the living room and in the abandoned trailer, and counsel did not request an election at the close of the evidence. Appellant claims counsel's failure to request that the State make an election prejudiced him because it may have resulted in a non-unanimous jury verdict: some jurors could have convicted based on offenses occurring in the living room while other jurors could have convicted based on offenses occurring in the abandoned trailer. See Phillips v. State, 193 S.W.3d 904, 909-10 (Tex.Crim.App. 2006). Counsel was not questioned regarding his failure to request an election and object to the jury charge. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). It is possible counsel decided not to request an election because without the election, the remaining offenses of sexual assault testified to by the children are jeopardy-barred. See Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex.Crim.App. 1998). Where the record is silent and counsel's decision could have been a strategic choice, we cannot presume the failure to request an election or a jury instruction was unreasonable. See Tomlinson v. State, No. 14-04-01126-CR, 2006 WL 1140718, at *4 (Tex.App.-Houston [14th Dist.] Apr. 27, 2006, pet. ref'd) (mem. op., not designated for publication) (concluding failure to request election could have been strategic based on double jeopardy bar). Appellant has not shown that his trial counsel performed deficiently, nor has he shown a reasonable probability that but for counsel's alleged deficiencies, the outcome of the proceeding would have been different. Accordingly, we conclude the trial court did not abuse its discretion in denying appellant's motion for new trial. We overrule appellant's sole issue. We affirm the trial court's judgment.