Opinion
No. 14-02-01179-CR
Memorandum Majority and Concurring Opinions filed May 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas, Trial Court Cause No. 888,614. Affirmed.
Panel consists of Justices EDELMAN, FROST, and GUZMAN.
MEMORANDUM MAJORITY OPINION
Byron Wilson Hildreth, Jr. appeals a conviction for indecency with a child on the grounds that: (1) the evidence was legally and factually insufficient; and (2) he was denied effective assistance of counsel. We affirm.
A jury convicted Hildreth and sentenced him to five years confinement.
Sufficiency of the Evidence
Appellant's first and second points of error contend that the evidence is legally and factually insufficient to prove that he touched the complainant intentionally or with the intent to gratify himself sexually. Evidence is legally insufficient if, viewed in the light most favorable to the verdict, no rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rayford v. State, 125 S.W.3d 521, 526 (Tex.Crim.App. 2003), petition for cert. filed, ___ U.S.L.W. ___ (U.S. April 26, 2004) (No. 03-10038). Evidence is factually insufficient if, viewed in a neutral light, the proof of guilt is so obviously weak as to undermine confidence in the verdict or greatly outweighed by contrary proof. Rayford, 125 S.W.3d. at 526-27. As relevant to this case, a person commits indecency with a child if, with the intent to arouse or gratify his sexual desire, the person touches, including through clothing, the genitals of a child younger than 17 years and not the person's spouse. See TEX. PEN. CODE ANN. § 21.11(a)(1), (c)(1) (Vernon 2003). The intent to arouse or gratify a person's sexual desire can be inferred from his conduct, remarks, and all surrounding circumstances. Ranson v. State, 707 S.W.2d 96, 97 (Tex.Crim. App. 1986). In a sufficiency review, a jury's inference of intent is afforded more deference than evidence supporting proof of conduct. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim. App. 2000). A conviction for indecency with a child may be supported by the uncorroborated testimony of the minor victim. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (Vernon Supp. 2004). In this case, the evidence showing that appellant touched the complainant intentionally and with the intent to gratify himself sexually includes the complainant's testimony that the touching occurred, even after the complainant had tried to push appellant's hand away, and the testimony of the complainant, his brother, and his mother that: (1) after the complainant called his mother to come pick him up from appellant's apartment, appellant sat in his recliner and cried; (2) appellant told the complainant that he (appellant) would lose his job and everything he had; (3) appellant said he couldn't live with himself; and (4) appellant was crying uncontrollably and stated, "Please forgive me. I thought he wanted me to." This evidence is legally sufficient to prove the requisite intent. As to factual sufficiency, although appellant denied touching the complainant, claimed that it was an accident, asserted that the complainant waited a long time to make an outcry, and argued that the complainant falsely accused him to cover up his own inappropriate behavior, these were matters of credibility for the jury to weigh and are not of sufficient magnitude to render the evidence factually insufficient. Accordingly, appellant's first two points of error are overruled.Ineffective Assistance of Counsel
Appellant's third and fourth points of error argue that he was denied effective assistance of counsel by his trial counsel's failures: (1) during the guilt/innocence phase of trial to investigate the character and reputation witnesses whose names she was provided; and (2) during the punishment phase to present a meaningful case in mitigation. The Sixth Amendment right to effective assistance of counsel is denied when a defense counsel's performance falls below an objective standard of reasonableness, and prejudices the defense. Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003). The prejudice must amount to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Wiggins v. Smith, 123 S.Ct. 2527, 2542 (2003). In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigation evidence. Id. At the hearing on the motion for new trial, the testimony of appellant and his parents, that they provided his counsel information with which to contact three favorable character witnesses, was controverted by the contrary testimony of appellant's defense counsel. Appellant has provided us no basis to conclude that the trial court erred in weighing the respective credibility of these witnesses and resolving their conflicting testimony. Moreover, appellant contends that the entire case revolved around his credibility, and, accordingly, that favorable testimony from character witnesses would have encouraged the jury to think he was not lying in his testimony. However, in that the jury heard the testimony of the witnesses directly involved in the matters in issue, including appellant, it would be difficult to conclude that any such general testimony regarding appellant's character creates a reasonable probability that a different determination regarding his guilt would have resulted from it. With regard to appellant's assertion of ineffective assistance for his counsel's failure to call his parents to testify during the punishment phase of trial, his counsel testified at the motion for new trial hearing that this was a tactical decision based on the jury's apparent rejection of their testimony during the guilt stage and her belief that testimony from a defendant's parents is generally not persuasive to juries. Although appellant obviously disagrees with this assessment, he has provided no basis to overcome the presumption that it be considered sound trial strategy. See, e.g., Bell v. Cone, 535 U.S. 685, 698, 700 (2002) (finding no ineffective assistance in failing to call the defendant's mother during the punishment stage). Appellant further contends that his trial counsel was ineffective in failing to subpoena a probation officer to testify regarding the supervision system that exists for those on community supervision for indecency with a child. However, he cites no decisions holding any such failure to be ineffective assistance. In addition, the jury charge listed the community supervision conditions that could be imposed by the court, as well as the consequences of a violation of those conditions, if community supervision had been imposed. Appellant's brief does not specify how the probation officer's testimony might have changed a juror's mind as to recommending probation in light of the information provided in the charge. Therefore, it fails to demonstrate a reasonable probability of a different outcome on the jury's decision not to recommend probation had the officer testified during the punishment phase. Accordingly, appellant's third and fourth points of error are overruled, and the judgment of the trial court is affirmed.MEMORANDUM CONCURRING OPINION
The court correctly disposes of appellant's first and second points of error challenging the legal and factual sufficiency of the evidence. I write separately to address the portion of appellant's third point of error raising ineffective assistance of counsel in the guilt-innocence stage of trial. Appellant failed to satisfy the first prong of the Strickland test and, for this reason, his ineffective assistance of counsel claim fails. Notably, appellant raised ineffective assistance of counsel in the context of a motion for new trial. As the Court of Criminal Appeals recently noted in its unpublished opinion in State v. Jones, the standards are not so clear for reviewing claims of ineffective assistance raised in this context. State v. Jones, No. 678-02, 2004 WL 231309, *8 (Tex.Crim.App. Jan. 28, 2004) (not designated for publication). A trial court's ruling denying a motion for new trial is typically reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). However, the performance and prejudice components of the Strickland test are mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070 (1984). We must afford almost total deference to a trial court's determination of the historical facts and of mixed questions of law and fact that turn on the credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. App. 1997). A reviewing court is not bound by the trial court's legal conclusion on the issue of ineffectiveness and may independently determine that issue while giving deference to the trial court's findings on subsidiary questions of fact. See id. To meet the standard for establishing ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. See Strickland, 466 U.S. at 688-92. The majority addresses the prejudice prong of this two-prong analysis in concluding that appellant has not met the standard for ineffective assistance of counsel. The majority finds that because the jury heard the testimony of appellant and others directly involved in the matters in issue, it would be difficult to conclude that testimony from three favorable character witnesses "creates a reasonable probability that a different determination regarding his guilt would have resulted from it." Determining how the testimony of three different witnesses might have impacted the jury's evaluation of the evidence for purposes of the prejudice analysis is a complex undertaking, particularly when appellant's credibility was important to the case. However, the court need not even undertake the difficult prejudice analysis in Strickland's second prong because appellant cannot satisfy the first prong. The record in this case contains conflicts in the testimony of the witnesses regarding whether trial counsel's representation fell below the requisite standard. Trial counsel testified that her failure to call character witnesses was not a matter of strategy; rather, she did not do so because, in some cases, appellant instructed her not to contact them and he otherwise failed to provide her with a list of names. Though appellant and his witnesses gave contrary testimony, the trial court was in the best position to evaluate the credibility of the witnesses and resolve any conflicts with regard to whether trial counsel investigated character witnesses on appellant's behalf. See Kober v. State, 988 S.W.2d 230, 233 (Tex.Crim.App. 1999). The trial court could have chosen to believe or disbelieve all or any part of the witnesses' testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Apparently, the trial court resolved the conflicts in favor of trial counsel's version of events, believing appellant did not provide his trial counsel with the names of character witnesses or was otherwise uncooperative with the investigation. Although trial counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Strickland, 466 U.S. at 691. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id. Likewise, when the defendant has instructed counsel not to contact or speak to certain potential character witnesses, it is not unreasonable for counsel to refrain from doing so. Thus, applying the first prong of the ineffective assistance standard, appellant cannot refuse to provide his attorney with the information necessary to investigate potential character witnesses and then claim the attorney's actions were not reasonable. Having failed to satisfy the first prong of the Strickland test, appellant cannot prevail on his ineffective assistance claim, and this court need not reach the second prong. Though I do not join the majority's analysis for appellant's third point of error, I respectfully concur in the court's decision to overrule appellant's ineffective assistance of counsel challenge and affirm the judgment of the trial court.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).