Opinion
NUMBER 13-16-00135-CR
07-06-2017
CHAD MICHAEL BOUTWELL, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 130th District Court of Matagorda County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Benavides
This appeal arises after appellant, Chad Michael Boutwell, was convicted by a jury of continuous sexual assault of a young child, a felony of the first degree. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2017 R.S.). Boutwell brings this appeal alleging his trial counsel provided ineffective assistance by not objecting to the State's improper bolstering during closing arguments. We affirm.
I. BACKGROUND
In January of 2015, A.S., the mother of then 3-year-old B.S., notified the Bay City, Texas Police Department after having a suspicious conversation with B.S. in which the child stated the family's neighbor, Boutwell, had touched the child in a sexual manner.
In order to protect the complainant's identity, we will use his initials and his family member's initials throughout this memorandum opinion. See generally TEX. R. APP. P. 9.8.
Sergeant Investigator Maria Gomez first interviewed the child, who stated that Boutwell "had put his weenie on his tummy" and that the child's mouth "had contacted the defendant's sexual organ." Subsequently, on February 12, 2017, Sgt. Gomez interviewed Boutwell. In a written statement Boutwell indicated he "believed that the accusations against [him] with [his] neighbor, B.S., happened sometime between the last part of January to early part of February, 2014." Boutwell was later arrested for continuous sexual abuse of a child. See id.
The State asserted the following in its closing argument:
And then you heard from [B.S.] who sat up there and was just a typical 4-year-old little boy. Part of me wanted to just take that little boy off the stand, to wrap him in my arms and carry him out of this room because he was embarrassed and he was scared. The mother in me absolutely wanted to do that. The prosecutor in me knows that I can't. And those are the hardest moments for me in my career, when what I want to do as a mother and what I have to do as a prosecutor is different. And I know that the 12 of you, the 13 of you, want to tell that little boy that you're so sorry too. You want to wrap him in your arms and you want to say I'm so sorry that this happened to you, but you have to remain seated too. Except for today. Today you get to tell him I'm so sorry, [B.S.]. I'm sorry that happened to you. You tell him you're sorry by telling him I believe you. I know that this happened to you, I believe you, and I'm sorry; and you do that with your guilty verdict. That's the best way to tell him that you're sorry is to tell him that you believe him. Because this child, this 3-year-old who should have no context for sexual acts, he knows - he knows things he
shouldn't know. And he describes them to you in language like a child.
The jury subsequently found Boutwell guilty of continuous sexual abuse of a child and sentenced him to a 99-year confinement without parole in the Texas Department of Criminal Justice-Institutional Division. Boutwell consequently filed a motion for new trial; however, it did not address the ineffective assistance of counsel claim. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
By his sole issue, Boutwell argues that reversible error was committed because he was denied effective assistance by defense counsel at trial.
A. Standard of Review
Ineffective assistance of counsel is established through the two-prong Strickland v. Washington test. 466 U.S. 668 (1984). The Strickland test considers: (1) whether counsel's representation fell below an objective standard of reasonableness; and (2) whether there is a reasonable probability that the result of the proceeding would have been different but for the attorney's deficient performance. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 694); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet).
Allegations of ineffectiveness must be "firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A "convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690. We look 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. Furthermore, if either prong cannot be proven, then an ineffective assistance of counsel claim fails. See Strickland, 466 U.S. at 697; Andrew v. State, 159 S.W.3d 99, 101, (Tex. Crim. App. 2005).
In evaluating the first prong of Strickland, counsel's competence is presumed and the defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action could not have been based on sound strategy. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). "A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent." Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. Id.
B. Applicable Case Law & Discussion
The sole claim argued by Boutwell is that his trial counsel provided ineffective assistance by failing to object to allegedly improper bolstering by the State during closing arguments at trial. Boutwell identifies statements that the State wanted to comfort B.S. when giving his testimony at trial, in addition to telling the jury that they may show B.S. they believe him by way of a guilty verdict as bolstering. These statements, however, are not clearly improper. When a claim is made that counsel was ineffective, it should be clear that the questioned conduct was unsuitable in assisting the counsel's client. See Kimmelman, 477 U.S. at 384.
Proper jury arguments fall within one of four general categories: "(1) summation of evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement." Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Because Boutwell challenged the reliability of B.S.'s statements during cross-examination, the State responded to this issue in its closing. In this case, the State's argument may be characterized as falling into category three of the aforementioned proper jury arguments and thus, any objection to the complained-of statements likely would not have been successful.
Furthermore, we must give counsel deference when looking back upon counsel's trial decisions. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). "Because of the difficulties inherent in making the evaluation [of ineffective assistance of counsel,] a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 697 (internal quotations omitted).
Even if we accept Boutwell's assertion that the prosecutor's closing arguments consisted of improper bolstering, "the totality of the representation" is what must be considered and not simply a remote instance. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Throughout the stages of litigation, trial counsel demonstrated his advocacy for Boutwell. During pre-trial, trial counsel filed motions in limine and motion to exclude or redact video to exclude certain testimonies. At the opening of trial, trial counsel requested a ruling on his motion to exclude witnesses. As the trial progressed, trial counsel sought a jury instruction to keep Boutwell's confession from jury consideration and challenged the State's witnesses through cross-examination. Moreover, defense counsel put forward a witness that provided testimonial evidence supporting his arguments. Counsel demonstrated his advocacy for Boutwell many times throughout litigation, and it is the complete picture of the counsel's representation we must look at in determining whether it was effective. See Thompson, 9 S.W.3d at 813. Defense counsel's actions throughout the trial process suggest generally effective representation.
Finally, without having established that trial counsel's performance was deficient, there is little reason to question the outcome of this trial, but even if we were to remove the specified statements made by the State that Boutwell alleges to be improper, it is not apparent that the jury's decision to convict would be any different. There must be proof that the "deficient performance prejudiced his defense. . . '[which] means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different.' A 'reasonable probability' is one sufficient to undermine confidence in the outcome." Bone, 77 S.W.3d at 833 (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc)). The jury's decision to convict Boutwell was not clearly made based solely on the State's closing arguments. There were a number of considerations the jury was presented with throughout trial and it would be conjecture to say the result was based on State's closing. Therefore, we cannot speculate that but for defense counsel's failure to object to such closing arguments, there would have been a different result in this trial.
III. CONCLUSION
We affirm the trial court's judgment.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 6th day of July, 2017.