No. 01-06-01052-CR
Opinion issued January 10, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from 248th District Court Harris County, Texas, Trial Court Cause No. 1080870.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
JANE BLAND, Justice.
A jury convicted appellant, Dan Edward Chandler, of the felony offense of indecency with a child and assessed punishment at ten years' imprisonment. See TEX. PEN. CODE ANN. §§ 12.33, 21.11 (Vernon Supp. 2007). In one point of error, appellant contends that the trial court erred in denying his motion for new trial on the ground that he was deprived of the effective assistance of counsel. We affirm.
I. Factual and Procedural Background
A. Guilt-Innocence Phase
R.B., the complainant, who was 20 years old at the time of trial, testified that in November 2000, she was 13 years old and living in Indiana. R.B.'s mother is appellant's sister. Around that time, R.B.'s father developed a brain tumor, and he and the family traveled to Dallas, Texas for a series of doctor's appointments in order to diagnose the cause. The family arranged for R.B. to travel to Houston with appellant so that she could stay with appellant and his family while R.B.'s father sought treatment. When R.B. and appellant arrived in Houston, appellant's wife and son were asleep. R.B. and appellant sat on the couch and watched a movie. At some point, R.B. went upstairs to change into her pajamas, and then she came back to the couch. Appellant asked R.B. to lie down with him on the couch, and she agreed. Appellant began rubbing R.B.'s leg, making her feel uncomfortable. Appellant rubbed under her pants and underwear, eventually touching and inserting his fingers into her vagina. R.B. testified that she could feel appellant's erect penis touching her back and that he "had it pulled out." After appellant began to get on top of her, R.B. ran upstairs and locked herself in the guest bedroom. The next morning, appellant came into her room while she pretended to be asleep and then left the room. Later, R.B. went downstairs to ask appellant where her aunt and cousin were; he informed her that they had left for the day. Because R.B. did not want to be left alone in the house with appellant, she agreed to go to Galveston with him. R.B. took a quick shower and while she was getting dressed, appellant knocked on the door asking to come in, but R.B. told him to wait. While at the movies in Galveston, appellant again rubbed R.B.'s leg and her feet. R.B. testified that she feared what she anticipated would happen next and decided to get up and go toward the bathroom, where she called a friend, Faith Blevins, to talk with her. When R.B. ended her conversation with Ms. Blevins, she went back in the theatre to watch the remainder of the movie. After the movie, R.B. called her mother to ask her to come get her right away. R.B. felt uncomfortable telling her mother at that time what had happened to her. The next day, R.B. and appellant met R.B.'s parents at a gas station between Houston and Dallas, and R.B. went back to Dallas with them. R.B. stated that she tried to talk to her mother in Dallas, but her mother acted as if she did not want to hear about the incident. Approximately a week after they had gotten back to Indiana, R.B. told her aunt what had happened to her, and her aunt acted supportively. Her aunt wanted her to report the incident, but R.B. made her promise not to tell anyone because she was ashamed that it had happened and did not want anyone else to know about it. Eventually, R.B.'s aunt informed R.B.'s mother. R.B. testified that once she chose to press charges, neither her aunt nor her mother were supportive. R.B. had two telephone interviews with Officer Stephens of the Houston Police Department prior to trial, but never met with her in person. R.B. testified that in the first taped phone interview, she did not tell Officer Stephens all the details relating to the abuse because she did not feel that her family would be supportive. Appellant's former wife, who was married to him at the time of the incident, testified that R.B. spent at least one night at their house, but she did not remember many of the details. Appellant did not call any witnesses in the guilt-innocence phase of trial. In his closing argument, trial counsel attacked the investigation of Officer Stephens, claiming that it was not thorough, and argued that the police failed to investigate several key witnesses. He also attacked the credibility of R.B., claiming that she was untruthful. Following deliberations, the jury found appellant guilty of indecency with a child. B. Punishment Phase
After appellant had been found guilty, the State and appellant each presented testimony in the punishment phase of trial. The State presented six witnesses. Among these witnesses, the State offered appellant's nieces, T.B.C. and N.V.C., who were sisters living in Kentucky. At his request, appellant had hosted each girl in his home separately when they were 13 to 14 years old. 1. Testimony of N.V.C. N.V.C. visited appellant first and testified that appellant had sexually abused her daily over the course of her two-week visit. The abuse began when she felt appellant under the covers and in bed with her the first morning of her visit. N.V.C. testified that appellant caressed her back and rubbed her thighs "inappropriately." She realized that he had removed her shorts and had his hand on her vagina and another on her breast under her shirt. He continued to fondle her even when his son entered the room requesting breakfast. N.V.C. testified further that appellant had sexually assaulted her on the second night of her visit while they were watching a movie. She stated that appellant caressed her vagina with his foot and slid his body next to hers. Appellant took N.V.C's pants off, partially removed his, and placed his penis into her vagina. N.V.C. testified that she felt great physical pain during the encounter and later noticed a mixture of semen and blood in her urine. During her stay, appellant had intercourse with her every day, sometimes more than once. N.V.C. detailed these sexual assaults as follows: (1) appellant performed oral sex on her and put his penis into her mouth, (2) appellant fondled her and sexually assaulted her during a trip to Sea World, and (3) appellant sexually assaulted her in the break room at his job during an overnight shift. 2. Testimony of T.B.C. Appellant's other niece, T.B.C., testified that she had several phone conversations with appellant concerning her visiting Houston. During these conversations, appellant would ask her to touch her "private area." T.B.C. accompanied appellant to Houston after he attended N.V.C.'s high school graduation in Kentucky. At some point in her visit, appellant touched T.B.C.'s vagina beneath her swimsuit while they were in the pool. She also awoke frequently to appellant in her bed, "cuddling" her. Following a trip to Galveston beach, appellant got in the shower naked with T.B.C. When T.B.C. got out of the shower, appellant stated that he wanted to put aloe vera on her back and shoulders in order to treat her sunburn. Appellant then gave T.B.C. a white pill for the pain she was experiencing, which T.B.C. thought was aspirin. Subsequently, appellant laid T.B.C. on the bed, rubbed some aloe vera on her back and sides, "started cuddling [her] again," and put his penis in her vagina from behind her. T.B.C. "blacked out" and awoke dressed and upstairs in the guest bed. She noticed that it burned when she urinated after the incident. She told no one of the incident when she returned home. 3. Testimony of T.B.C.'s and N.V.C.'s Mother T.B.C.'s and N.V.C.'s mother testified that she had been divorced from appellant's brother for 16 years. In June 2005, she mentioned something to T.B.C. about T.B.C.'s going to visit appellant. T.B.C. said that she had no desire to see appellant again. The next morning, N.V.C. told her what had happened to both T.B.C. and herself. T.B.C.'s and N.V.C.'s mother contacted Kentucky authorities, who placed the mother in contact with the Houston Police Department. 4. Testimony of Appellant's Former Wife Ms. Chandler stated that she had been divorced from appellant for approximately a year. She testified that appellant would get angry when she did not want to have sex with him. Appellant constantly touched her genitals, even while watching television. Ms. Chandler also testified that she used prescription medicine to sleep and would awake to find appellant having sex with her. These incidents occurred for years, but when she asked appellant about it, he claimed that she "came on to him" while she slept. Ms. Chandler also described four incidents involving appellant's aggression during their marriage. Once, appellant dragged her through the house, threw her across the dining room, and left bruises on her thighs and arms. In another incident, appellant threw a glass of coke at a wall during an argument with her, and on a second occasion, he threw ice at someone in a movie theater. Finally, she witnessed appellant's "banging" a car that was parked too close to his. She testified that they had a "nasty divorce" because appellant had an affair during their marriage. 5. Appellant's Testimony Asserting that he was falsely accused, appellant denied the claims made by his nieces. Appellant also testified that he had helped R.B.'s mother financially in the past. Appellant stated that he had engaged in a long affair with N.V.C.'s and T.B.C.'s mother, which ended when she divorced his brother. Appellant explained that after he had broken off the affair, appellant stopped giving money to N.V.C. and T.B.C. He also testified that he had been asked to buy a car for one of them and had refused. 6. Appellant's Punishment Witnesses Appellant's co-worker rebutted N.V.C.'s claim of sexual assault at appellant's workplace by testifying that there was no lock on the break room door where N.V.C. testified that appellant had sexually assaulted her. He also noted that cleaning staff and security entered the room at all hours of the night. Appellant's fiancée testified that she had met appellant six or seven years earlier and never encountered any problems involving appellant's conduct with her children. Finally, a friend of appellant testified that he trusted appellant around his son. Appellant's mother and the grandmother of the three girls testified that N.V.C. never complained of anything inappropriate during her stay with appellant in Texas and that N.V.C. went shopping with appellant when he came to her high school graduation. She also testified that while N.V.C. was in Texas with appellant, she complained that appellant was not taking her out and buying her presents like she had anticipated. Finally, she offered her opinion that the reputation for truthfulness of N.V.C., T.B.C., and R.B. was poor. Appellant's brother testified that he was close to T.B.C. and that she had confided in him in the past. He noted that when N.V.C. returned from Texas, he noticed no change in her behavior. He also testified that he felt that R.B. had very little personal integrity. Both appellant's co-worker and his fiancée testified that appellant could satisfy the conditions of community supervision by following all the rules of the court. 7. State's Rebuttal Witness In rebuttal, the State called Dr. Lawrence Thompson, Director of Therapy and Psychological Services at the Children's Assessment Center. He testified about a phenomenon known as "grooming," whereby a sex offender prepares his victim for the assault. Dr. Thompson also testified about delayed outcries of child sexual abuse sufferers and general behaviors that a child sexual abuse victim might display. He explained that psychological literature held that a sex offender could not be cured, but could be taught to manage his or her impulses. He concluded that, in his opinion, limiting a sex offender's access to children was the only way to ensure that the individual would not reoffend. Dr. Thompson detailed the sex offender treatment program provided by the Texas Department of Criminal Justice Institutional Division (TDCJ) as "very thorough and intense" and articulated its benefits, including the offender's restricted access to materials that he or she might use to fantasize about children, including television, magazines, and books. Dr. Thompson distinguished the TDCJ program from outpatient programs in which an offender might still have access to such material or to children while participating in treatment. On cross-examination, appellant's attorney asked Dr. Thompson whether he was familiar with "the many different conditions" that may be imposed on sexual offenders who receive community supervision, including required counseling. In an attempt to establish bias, appellant's attorney also elicited the fact that Dr. Thompson was a Harris County employee whose testimony on behalf of the State was part of his work-related duties. Following the testimony, the jury assessed appellant's punishment at ten years' confinement. Appellant timely filed his Motion for New Trial and Motion in Arrest of Judgment, contending that trial counsel had rendered ineffective assistance of counsel by having failed to investigate the credibility of R.B. and, had he done so, would have discovered that R.B. had made statements that revealed bias against appellant. The motion also alleged that trial counsel did not present any character witnesses for appellant and did not let appellant take the stand in his own defense during the guilt-innocence phase of trial. The trial court conducted an extensive evidentiary hearing on the motion. Testifying during the hearing were R.B.'s mother, appellant's fiancée, appellant, and trial counsel. At the conclusion of the hearing, the trial court signed a written order denying the motion. II. Ineffective Assistance of Counsel
In his sole point of error, appellant argues that he received ineffective assistance of counsel at his trial because his trial counsel failed (1) to investigate the background of R.B. and other facts of the case, (2) to call certain witnesses during the guilt-innocence phase of trial, and (3) to prepare for and to present evidence at the punishment phase of the trial properly. Appellant claims that, but for these omissions, there is a reasonable probability that the outcome of the case would have been different. A. The Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland requires a two-step analysis whereby an appellant must show both that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Id.; Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Strickland defines reasonable probability as a "probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that the attorney's performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Furthermore, a claim of ineffective assistance must be firmly supported in the record. Id. We review a trial court's ruling on a motion for new trial under an abuse-of-discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004); Anderson v. State, 193 S.W.3d 34, 39 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Under this standard, we examine whether the trial court's determination of the ineffective assistance claim and denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement. Anderson, 193 S.W.3d at 39. We do not substitute our judgment for that of the trial court. Charles, 146 S.W.3d at 208. We review the evidence in the light most favorable to the trial court's ruling and presume that all reasonable findings that could have been made against the losing party were so made. Id. Only if no reasonable view of the record could support the trial court's ruling do we conclude that the trial court abused its discretion by denying the motion for new trial. Id. B. Appellant's Trial Counsel Was Not Ineffective
1. Investigation of the background of R.B. and other facts of the case A criminal defense lawyer has a duty to make an independent investigation of the facts of a case, which includes seeking out and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). A breach of the duty to investigate may result in a finding of ineffective assistance "where the result is that any viable defense available to the accused is not advanced." Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982). In defining the duty to investigate, the United States Supreme Court has stated that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. Appellant contends that trial counsel did not conduct a thorough investigation into the background of R.B. Appellant further claims that it is "undisputed that very little effort was made to research the credibility of [T.B.C. and N.V.C.]" because no investigator was ever sent to Kentucky to investigate their background. Appellant asserts that a complete investigation would have established motives for the three girls to falsify their testimony, which "was especially harmful in light of the weakness of the state's case in chief, which rested solely on the testimony of one witness who did not disclose the alleged crime until years afterward." The record reveals that appellant's trial counsel conducted an investigation of the facts and circumstances surrounding the sexual abuse of all three girls. At the hearing on the motion for new trial, counsel testified that he met with appellant numerous times at his office, in the courtroom, and by phone. Additionally, the testimony revealed that trial counsel spoke to several witnesses, including appellant and five of appellant's family members. The trial attorneys also contacted family members who lived close to each of the girls, including R.B.'s mother. Trial counsel attempted to contact R.B.'s aunt and Faith Blevins, the friend to whom R.B. made her first outcry. To this end, the trial attorneys hired an independent investigator in an attempt to locate Blevins, but they could not find her. Trial counsel also sought out-of-state records, including an offense report related to N.V.C. and her mother, which was introduced into evidence. Finally, trial counsel spoke with a police officer in Kentucky who had been dispatched to N.V.C. and T.B.C.'s home in response to the girls' report of the sexual abuse by appellant. In light of the record, we cannot conclude that the trial court abused its discretion by determining that trial counsel conducted a reasonable investigation as to R.B.'s background and other facts of the case, and that appellant failed to meet the first prong of Strickland. See Thompson, 9 S.W.3d at 813. 2. Failure to Call Certain Witnesses Appellant also argues that his trial counsel was ineffective because counsel did not offer the testimony of R.B.'s mother, Faith Blevins, and R.B.'s aunt during trial. At the hearing on the motion for new trial, R.B.'s mother testified that her daughter made statements after appellant was convicted evidencing bias, namely, that she was glad that appellant no longer had his house or money. In his brief, appellant does not claim that R.B.'s statements to her mother indicating R.B.'s animus or bias toward appellant were unknown to trial counsel because trial counsel failed to use due diligence before trial. See Delamora v. State, 128 S.W.3d 344, 355 (Tex.App.-Austin 2004, pet. ref'd). To the contrary, these statements were made after trial and do not speak to trial counsel's failure to develop facts for trial sufficiently. Moreover, appellant's trial attorney testified that he decided not to call R.B.'s mother to testify after determining that her version of events corroborated R.B.'s and that she would be a more favorable witness for the State. With respect to R.B.'s aunt, appellant's trial counsel said that he had attempted to secure her attendance but, due to an illness in the family, she was not willing to travel to Houston. When trial counsel suggested that she be compelled to testify, appellant told him to "drop that." As previously noted, counsel made several attempts to contact Faith Blevins, but was unsuccessful. On this record, we cannot conclude that the trial court abused its discretion by determining that trial counsel conducted a reasonable investigation, the first prong in Strickland, or that testimony from these witnesses would not have, to a reasonable probability, brought about a different result in the trial, the second prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 1064. 3. Failure to Prepare for and to Present Evidence at the Punishment Phase of the Trial Appellant next argues that trial counsel was ineffective because he failed to prepare for the punishment phase properly. At the motion-for-new-trial hearing, appellant's fiancée testified that she provided trial counsel with a list of approximately ten witnesses who could have testified in appellant's behalf, but none of these was called. Appellant also contends that trial counsel was ineffective in failing to have him examined by a psychiatrist or psychologist to establish his suitability for community supervision and to dispute the opinion of the State's expert that sex offenders cannot be cured. Additionally, appellant argues that counsel should have produced evidence as to the effectiveness of alternative treatment programs for sex offenders. Finally, appellant argues that counsel was ineffective in his failure to conduct a voir dire examination on the issue of community supervision and that such failure harmed appellant's chances of receiving community supervision from the jury. Appellant's trial attorney explained at the motion for new trial hearing that he conducted two to three mock direct and cross-examinations of appellant before trial began. The Sunday before the punishment phase commenced, trial counsel spoke in depth with appellant regarding the nature of appellant's testimony. At the hearing on the motion for new trial, appellant testified that he and trial counsel discussed the topics of his testimony and that he understood it. The record thus demonstrates that appellant's attorney prepared appellant for his punishment testimony. With regard to the ten witnesses that appellant's fiancée procured for trial counsel, the record does not reveal their identities or whether the substance of their testimony would have been helpful to appellant. The record shows that appellant's trial counsel presented evidence in the punishment phase of trial from appellant, appellant's co-worker, appellant's fiancée, appellant's friend, appellant's mother, and appellant's brother. Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). Appellant has not shown, to a reasonable probability, how the additional witnesses who were not called to testify would have brought about a different result. See Strickland, 466 U.S. at 687, 104 S. Ct. at 1064. Although appellant's trial counsel did not present testimony from a psychiatrist or psychologist to establish appellant's suitability for community supervision or to refute the testimony of the State's expert, appellant's trial attorney testified at the motion-for-new-trial hearing that he had secured Dr. Jerome Brown as an expert witness, but did not believe Dr. Brown's testimony necessary. There is no evidence in the record to support appellant's contention that a jury would have assessed community supervision had an expert testified on his behalf. The range of punishment for appellant's crime is two to twenty years' confinement, with the possibility of community supervision. The jury assessed punishment at ten years. TEX. PEN. CODE ANN. § 12.33 (Vernon Supp. 2007). Assuming without deciding that trial counsel's decision not to procure Dr. Brown's testimony or to produce evidence as to the effectiveness of alternative treatment programs for sex offenders meets the first prong of Strickland, appellant has not demonstrated that any prejudice resulted. See Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Finally, with regard to voir dire, appellant's trial counsel confirmed that he did not examine the venire panel regarding the issue of community supervision. Appellant's attorney, however, did not ask the trial attorney his reasons for not asking about community supervision during voir dire. The record indicates that both the trial court and the State discussed probation at length during their portions of voir dire. The record contains no evidence as to counsel's reason for failing to voir dire on the issue of community supervision. Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. Gamble, 916 S.W.2d at 93. Appellant thus fails to rebut the presumption that counsel acted reasonably. See Thompson, 9 S.W.3d at 814. Therefore, we conclude that the trial court did not abuse its discretion by failing to grant appellant's motion for new trial. Conclusion
Based upon a review of the record as a whole, we hold that appellant has failed to show by a preponderance of the evidence that he received ineffective assistance of counsel. The trial court thus did not abuse its discretion when it denied his motion for new trial. Accordingly, we overrule appellant's sole point of error and affirm the judgment of the trial court.