Nos. 14-08-00371-CR, 14-08-00372-CR, 14-08-00373-CR
Memorandum Opinion filed July 28, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(B).
On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause Nos. 1095552, 1105578, 1105579.
Panel consists of Justices YATES, GUZMAN, and SULLIVAN.
EVA M. GUZMAN, Justice.
Appellant Steven Andrew Brambila challenges his conviction for three counts of aggravated sexual assault of a child, arguing that his trial attorney rendered ineffective assistance by failing to object to leading questions that contained or elicited testimonial hearsay. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A few days before Thanksgiving in 2006, appellant's 13-year-old stepdaughter L.C. told family friend Denise Murray that appellant had sexually abused her from the time she was in second grade until appellant separated from L.C.'s mother earlier that year. As Murray later testified, L.C. stated that appellant had touched her vagina, breasts, buttocks, and anus; penetrated her vagina with his finger on multiple occasions; and had made her perform oral sex for him. According to Murray, L.C.'s mother wanted Murray to persuade the child to forgive and accept appellant because he was going to resume living with them. Murray telephoned the police, who interviewed L.C. that night. As part of the criminal investigation, a forensic interviewer later spoke with L.C. and her sister A.C., and both girls gave videotaped statements of their allegations. Police also interviewed appellant, who admitted that he had engaged in sexual conduct with his two stepdaughters over a period of years. He admitted that he had engaged in oral sex with both children and had intercourse with A.C., who was two years older than L.C. At the time of his interview, appellant calculated that he had not had sex with A.C. in approximately two years because A.C. told her boyfriend about appellant's behavior and the boyfriend "said he'd tell the law if it happened again." Appellant denied having intercourse with L.C., but stated that he had rubbed his genitals against her, so "she may have thought I was trying." When asked about the number of times he had oral sex with L.C., he responded that it was "too many times for me to say. I mean, it just happened all the time. It got to a point I guess where it just escalated and became a callous, where I didn't feel like I was doing anything wrong anymore." When asked L.C.'s age when appellant began behaving inappropriately, appellant stated he believed she was about eight years old. Although he stated that his wife told him that L.C. was only six years old at that time, he said, "[I]nside I don't want to believe that." Appellant was indicted on three charges of aggravated sexual assault of a child for (1) penetrating L.C.'s sexual organ with his finger, (2) penetrating L.C.'s mouth with his sexual organ, and (3) causing A.C.'s sexual organ to contact his sexual organ. The three cases were tried together, and appellant's videotaped confession was the only exhibit admitted during the guilt/innocence phase of trial. When she testified at trial, L.C. was fifteen and resided with her mother. L.C. answered questions identifying herself, appellant, and her date of birth, but when the State asked her about the abuse allegations, she repeatedly responded, "Plead the fifth." After the trial court instructed her that she was required to answer the State's questions, L.C. admitted that she made allegations of sexual abuse to others, but claimed that her prior statements were lies and the abuse described never occurred. She also stated that she did not know appellant had confessed. At the time of trial, A.C. was eighteen, pregnant, and recently married, but she and her husband resided with her mother. A.C. testified she did not remember telling anyone that appellant had sexually abused her, and although she agreed appellant molested her "a long time ago," she stated she had no memory of it. She admitted that a prior boyfriend confronted appellant about abusing her, but she testified that she had not told her boyfriend that appellant had done so. She also confirmed that her mother and appellant remained married. Forensic interviewer Aimee McAndrew testified about the investigation of the abuse allegations. According to McAndrew, L.C. reported that appellant had raped her and A.C., and L.C. further described instances in which appellant penetrated her vagina with his finger and required her to perform oral sex. McAndrew also testified that L.C. told her appellant began abusing her when she was six years old. Although McAndrew also had interviewed A.C., neither the State nor the defense inquired into the substance of that interview. During closing argument, the State emphasized and quoted from appellant's confession, but appellant's defense counsel pointed out that A.C. and L.C. recanted their earlier accusations, and asked the jury to "just look at the evidence as it is and listen to the people, the victims, and make your ruling based on what the victims want. They're the ones that have to live with this." The jury found appellant guilty as charged and assessed punishment at fifty years' imprisonment for each of the three offenses. The trial court ordered the sentences to run concurrently, and this appeal ensued. II. ISSUE PRESENTED
In a single issue, appellant contends he received ineffective assistance of counsel because his trial attorney did not object to certain of the prosecutor's questions to L.C., A.C., and McAndrew. III. STANDARD OF REVIEW
We review claims of ineffective assistance of counsel under the familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which applies to claims arising under the state or federal constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986) (en banc). Under the Strickland test, an appellant must prove not only that his trial counsel's representation was deficient, but also that the deficient performance was so serious that it deprived the appellant of a fair trial. Strickland, 466 U.S. at 687. To satisfy both requirements, an appellant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. at 690-94. Our review of defense counsel's performance is highly deferential. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). Allegations of ineffective assistance will be sustained only if firmly founded in a record that affirmatively demonstrates the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (en banc), abrogated on other grounds by Mosley v. State, 983 S.W.2d 249, 264 n. 18 (Tex.Crim.App. 1998) (en banc). When, as in this case, we are confronted with a silent record, we begin our review with the strong presumption that defense counsel's actions were motivated by sound trial strategy, and we will not conclude that representation was deficient unless counsel's conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). IV. ANALYSIS
Appellant contends that a number of the prosecutor's questions to L.C., A.C., and McAndrew contain "inadmissible testimonial hearsay, and thus, his counsel rendered ineffective assistance by failing to object to them." Appellant first argues that his counsel's conduct fell below the objective standard of prevailing professional norms because his attorney did not object to questions in which L.C. was asked if she made allegations of abuse to police and told Murray that appellant had molested her. But Murray already had testified to these facts without objection, and appellant does not contend that his attorney should have objected to Murray's testimony. The failure to object to the admission of cumulative evidence — particularly where, as here, appellant does not contend that the probative value of the additional testimony was substantially outweighed by the danger of unfair prejudice — does not provide a basis on which to conclude that the accused was inadequately represented at trial. See Stephens v. State, 276 S.W.3d 148, 154 (Tex.App.-Amarillo 2008, pet. ref'd) (explaining that, where an appellant does not contend that his defense attorney's failure to object to certain evidence constitutes ineffective assistance of counsel, the attorney's failure to object to subsequent testimony that is merely cumulative of that evidence does not fall below professional norms). Appellant also criticizes his trial attorney's failure to object when the prosecutor asked L.C. if she made particular statements to the forensic interviewer. Although appellant claims that the prosecutor's questions contained "obviously inadmissible testimonial hearsay statements," he does not explain on appeal why the questions merit this characterization. Appellant's arguments appear to be based on the assumption that the prosecutor's questions and the responses they elicited were offered as proof of the matters asserted, but "[o]ne of the common methods of impeachment is by the use of prior inconsistent statements, oral or written, under oath or not." Adams v. State, 862 S.W.2d 139, 147-48 (Tex.App.-San Antonio 1993, pet. ref'd). And the State, like any other party, is permitted to impeach its own witness with a prior inconsistent statement. See TEX. R. EVID. 607 ("The credibility of a witness may be attacked by any party, including the party calling the witness."); Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Crim.App. 1995) (explaining that where there is no evidence that the witness recanted a prior statement before trial, there is no showing that the State used the prior inconsistent statement for the primary purpose of placing otherwise inadmissible evidence before the jury under the guise of impeachment). As the Court of Criminal Appeals subsequently clarified, the State's knowledge that its witness will testify unfavorably is not a limiting factor under Rule 607, but is instead a factor to be analyzed under Texas Rule of Evidence 403 in considering whether the probative value of the prior inconsistent statement as impeachment evidence is outweighed by the danger of unfair prejudice. Hughes v. State, 4 S.W.3d 1, 4-6 (Tex.Crim.App. 1999). As previously noted, however, appellant has not argued on appeal that his trial attorney should have objected on this basis. Moreover, appellant neither asserts that the State knew the complainants would attempt to deny or disavow their prior allegations nor argues that the danger of unfair prejudice from this line of inquiry substantially outweighed its probative value. Although "[t]estimony admitted for impeachment purposes is without probative value" and its use therefore should be restricted by a limiting instruction to the jury, appellant does not complain of his attorney's failure to object to questions intended to impeach the witness, and does not challenge his attorney's failure to request an instruction limiting the jury's consideration of the responses elicited. Appellant's contention on appeal is simply that his counsel was ineffective in failing to raise an objection that these questions contained or elicited statements of testimonial hearsay. But the failure to object cannot serve as the basis for an ineffective-assistance claim unless, at a minimum, the trial court would have erred in overruling the objection. See Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004). Because defense counsel reasonably could have concluded that the State's questioning regarding the complainants' earlier statements was directed at impeachment rather than as proof that the initial allegations were true, we conclude that appellant has failed to establish that a hearsay objection was required or that the trial court would have erred in overruling it. Moreover, inasmuch as appellant's defense in the guilt/innocence phase and his plea for leniency in the punishment phase were based on the complainants' trial testimony minimizing or even recanting their earlier allegations, we do not agree that the failure to cut off this line of inquiry with a sustainable objection falls short of prevailing professional norms. Cf. Stepp v. State, No. 14-05-00635-CR, 2007 WL 608977, at *7 (Tex.App.-Houston [14th Dist.] Sept. 12, 2007, pet. ref'd) (mem. op., not designated for publication) ("[W]e are not persuaded that this gentler cross-examination of a minor, who has allegedly been the victim of sexual abuse almost since infancy and who was being cross-examined as the principal witness in the prosecution of her father, falls outside the bounds of objectively reasonable representation."). Appellant's complaint that his attorney was ineffective in failing to object to the State's examination of A.C. is similarly unavailing. A.C. admitted that her former boyfriend confronted appellant about the alleged abuse, but evidence regarding the confrontation already had been admitted through appellant's confession. Like the prosecutor's questions to L.C. as to whether she had accused appellant of sexual abuse, these leading questions simply elicited cumulative evidence, and defense counsel's failure to object to them was not inconsistent with sound trial strategy. See Young v. State, 10 S.W.3d 705, 713 (Tex.App.-Texarkana 1999, pet. ref'd) (observing that it may be "sound trial strategy for opposing counsel to choose not to object to leading questions when the evidence will come in anyway"). The prosecutor also asked leading questions as to whether A.C. remembered making particular statements to her mother and the forensic interviewer, but the rules of evidence do not forbid the use of leading questions on direct examination; their use is permitted, within the trial court's discretion, as necessary to develop the witness's testimony. TEX. R. EVID. 611(c); see also Jordan v. State, 154 Tex. Crim. 217, 219, 226 S.W.2d 449, 451 (1950) (observing that it is permissible to ask leading questions of an unwilling or hostile witness). Appellant next contends that his trial attorney rendered ineffective assistance by failing to object to the prosecutor's questions to McAndrew regarding L.C.'s recorded statement. According to McAndrew, L.C. "offered two instances of . . . digital penetration of her vagina by [appellant], and then she disclosed acts of oral sex where her mouth was penetrated by the defendant's penis." But the jury already had heard from Murray that L.C. made such statements; L.C. acknowledged that she made the allegations; and appellant himself, through his videotaped confession, admitted that he required oral sex from L.C. on countless occasions. McAndrew also stated that, according to L.C., appellant began abusing her when she was six years old, but here too, the jury already had heard appellant's confession that, according to his wife, he had been abusing L.C. since she was six. Finally, appellant argues that "trial counsel could have and should have objected to the endless questions by the prosecutor as a violation of appellant's Sixth Amendment right to confrontation pursuant to Crawford v. Washington, 541 U.S. 36 (2004)." But where, as here, "the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Id. at 59 n. 9. Because A.C. and L.C. appeared for cross-examination at trial, a Confrontation-Clause objection properly would have been overruled. In sum, we are not persuaded by appellant's arguments that his attorney was required to object to any of the challenged questions or testimony. "In regard to making objections, advocates must be free to choose not to make them even if they have a legal basis for doing so." McKinny v. State, 76 S.W.3d 463, 473 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (en banc). Defense counsel can render effective assistance without raising every sustainable objection, and the jury's potential reaction to objections as well as testimony are legitimate factors to consider. See Baber v. State, 931 S.W.2d 359, 362-63 (Tex.App.-Amarillo 1996, pet. ref'd). We presume that defense counsel's failure to object was motivated by trial strategy within the wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Here, appellant's attorney could have considered and legitimately rejected, for tactical reasons, each of the objections suggested on appeal. Appellant's attorney urged the jury to "listen to the people, the victims, and make [its] ruling based on what the victims want." Defense counsel reasonably could have refrained from objecting out of a legitimate concern that jurors would view a plea to "listen to the victims" as inconsistent with attempts to prevent the complainant's statements from being heard. Appellant's attorney was entitled to and presumably did consider whether, in light of appellant's videotaped confession, such objections might bear a greater risk of antagonizing the jury than supporting appellant's case. We therefore overrule appellant's sole issue on appeal and affirm the trial court's judgment.