Opinion
NO. 14-18-00687-CR
02-20-2020
JEREMY JONES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 22nd District Court Hays County, Texas
Trial Court Cause No. CR-17-0506
MEMORANDUM OPINION
Appellant Jeremy Jones appeals from his conviction for sexual assault of a child. In two issues appellant contends (1) he has the right to appeal; and (2) his trial counsel rendered ineffective assistance of counsel. Concluding appellant has the right to appeal, but has not met his burden to show ineffective assistance of counsel, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was indicted for sexual assault of a child younger than 17 years of age. See Tex. Penal Code Ann. § 22.011. After a jury was selected appellant entered a plea of guilty to the offense and chose to have punishment assessed by the jury. The trial court admonished appellant as to the charge and asked if appellant was pleading because he was guilty. The trial court admonished appellant that the range of punishment was two to twenty years with the possibility of a $10,000 fine. Appellant averred that he wished to continue with his guilty plea. Appellant was also given the panoply of written admonishments required by article 26.13 of the Code of Criminal Procedure. Appellant signed those admonishments and stated in open court that he understood them. Appellant understood that he was giving up his right to a jury trial on guilt-innocence, and would be required to register as a sex offender pursuant to Chapter 62 of the Code of Criminal Procedure.
The trial court orally admonished appellant again before the jury before the punishment trial began. Appellant entered a plea of guilty to the offense before the jury and appellant's punishment trial began.
On the day of the offense, the complainant and her mother were moving in with a relative, appellant's wife, in an apartment in San Marcos. The complainant, her mother, appellant, and his wife were cleaning the room where the complainant and her mother were going to stay when appellant's wife and the complainant's mother decided to go to the store for ice cream. After they left, the complainant was alone in the apartment with appellant and one of appellant's friends.
After ensuring that the women were gone appellant closed the door to the room where he and the complainant were cleaning and turned off the lights. Appellant began telling the complainant that his family had accused him of rape. While appellant and the complainant were lying down appellant flipped the complainant over and pulled down her shorts. Appellant then forced his penis inside the complainant's vagina against her will. The complainant was eventually able to push appellant off of her. Afterward appellant told the complainant, "If you tell anyone, I'm gonna do it to your mom." The complainant ran into another room and barricaded the door until her mother returned to the apartment. When the complainant's mother and others returned to the apartment they called 911 and reported the sexual assault.
Officer Ysidro Contreras, a San Marcos police officer, was dispatched to the apartment complex where the assault occurred. The complainant reported that she was 14 years old at the time and was alone with appellant, who was her uncle. Contreras collected a buccal swab sample from an area of the complainant's face where she reported that appellant had kissed her. Contreras then drove the complainant to Dell Children's Hospital in Austin for a sexual assault examination.
The complainant's mother testified that she and the complainant were making arrangements to move into a room in appellant's apartment. The complainant, her mother, and others who lived in the apartment were cleaning when they decided to take a break and get ice cream. The complainant and appellant stayed behind while the others left. When the complainant's mother returned, she heard the complainant screaming. The complainant reported that appellant had sexually assaulted her. Appellant and his wife fled the apartment when the 911 call was made.
Officer Tiffany Williams of the San Marcos Police Department heard the description of appellant and his car over her police radio. Williams saw the car and effected a traffic stop. Williams identified appellant as the driver of the car. Appellant told Williams that he and his wife had gone out for a drive and were returning home. Because appellant's story did not coincide with the police dispatch Williams asked appellant to step out of the car and answer some questions. Appellant eventually admitted that he was certain that his DNA would be found "in or around [the complainant's] vagina." When asked his level of certainty appellant responded that he was 85 percent certain. When Williams asked why 85 percent, appellant responded, "Okay. Well, my penis may have made contact with her vagina but there was no penetration." At that time Williams arrested appellant for sexual assault of a child.
Appellant's sister's therapist testified that appellant was removed from his birth parents by Child Protective Services when he was eleven years old. Appellant and his siblings were removed from their birth parents for abuse or neglect. The therapist knew appellant through family therapy designed to help the siblings and adoptive parents function better in the home. Appellant's birth parents taught their children how to shoplift and acted out sexually in front of the children. The birth parents also left appellant and his siblings alone for long periods of time leaving the children to scrounge for food. Appellant was adopted when he was 13 years old. The adoptive parents, by contrast, were a highly functioning family.
Following closing arguments, the jury assessed punishment at ten years in prison.
In two issues appellant argues (1) he has the right to appeal; and (2) his trial counsel rendered ineffective assistance.
ANALYSIS
The Supreme Court of Texas ordered the Third Court of Appeals to transfer this case to this court. See Tex. Gov't Code § 73.001. Under the Texas Rules of Appellate Procedure, "the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court." Tex. R. App. P. 41.3. We are unaware of any conflict between Third Court of Appeals precedent and that of this court on any relevant issue.
I. Appellant has the right to appeal.
In appellant's first issue he argues he should not be prohibited from appealing. We agree.
The plea papers signed by appellant before the jury trial on punishment contained the following paragraph:
WAIVER OF RIGHT OF APPEAL:The trial court signed a certification of defendant's right to appeal stating that this was not a plea bargain case and appellant had the right to appeal.
I, Jeremy Jones, Defendant in this cause, in writing and in open Court, with counsel, state that I understand that I have a right to appeal the conviction herein, and that following a conviction, if a defendant is indigent and desires to appeal, counsel will be appointed at no cost to the defendant. Now, understanding all rights in this connection, I waive and abandon all rights of appeal in this cause, including rights of appeal as to any pretrial matters and competency of defense counsel.
The record reflects that appellant pleaded guilty without an agreed recommendation as to sentencing. The right to appeal may be waived, and such a waiver is valid if made voluntarily, knowingly, and intelligently. Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim. App. 2006); Jenkins v. State, 495 S.W.3d 347, 350 (Tex. App.—Houston [14th Dist.] 2016, no pet.). A waiver of appeal prior to sentencing may be valid if it is bargained for—that is, if the State gives some consideration for the waiver, even if a sentence is not agreed upon. Jenkins, 495 S.W.3d at 350; see also Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). A non-negotiated waiver of the right to appeal is valid only if the defendant knows with certainty the punishment that will be assessed. See Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012) (per curiam); Simon v. State, 554 S.W.3d 257, 261 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The record in this case does not reflect that appellant waived his right to appeal knowing with certainty the punishment that would be assessed or that the State gave some consideration for the waiver.
Appellant's purported waiver of the right to appeal, therefore, is invalid. See Washington, 363 S.W.3d at 589-90. We sustain appellant's first issue to the extent we hold that appellant has the right to appeal.
II. Appellant has not shown his counsel was ineffective for failure to object to evidence during the punishment trial.
A. Standard of Review
Claims of ineffective assistance of counsel are evaluated under the two-pronged Strickland test that requires a showing that counsel's performance was deficient and that the defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 689 (1984). Appellant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To defeat the strong presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.1996). Appellant must show his counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 693; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).
Judicial scrutiny of counsel's performance must be highly deferential, and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel's actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id.
A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). It is not sufficient for the appellant to show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Rather, to establish that the attorney's acts or omissions were outside the range of professionally competent assistance, appellant "must show that counsel's errors were so serious that he was not functioning as counsel." Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995). We may not assume a lack of sound trial strategy on the part of trial counsel merely because we are unable to discern any particular strategic or tactical purpose in counsel's trial presentation. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ("A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent . . .. [A] defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.").
If appellant proves his counsel's representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
B. Trial counsel did not render ineffective assistance for failure to object to extraneous offense evidence.
Appellant contends that he received ineffective assistance of counsel because his counsel failed to object to evidence of an extraneous offense at the earliest opportunity.
After appellant's arrest he gave a videotaped statement to police in which he mentioned "partying" with the complainant's older sister. Appellant mentioned during the interview that a co-worker, Jaime Timmons, had accused him of sleeping with the complainant's older sister, who was sixteen years old at the time. Officer Robert Elrod of the San Marcos Police Department conducted the interview of appellant. During the interview appellant told Elrod that he had been accused of sleeping with the complainant's older sister. Appellant admitted that a co-worker, Jaime, had called his wife and accused him of sleeping with the complainant's older sister. Appellant denied the accusation. After interviewing appellant Elrod interviewed appellant's wife and Timmons. Elrod learned during the follow-up interviews that appellant had "hook[ed] up" with the complainant's older sister. Appellant did not object to admission of his taped statement or Elrod's testimony.
When the State called Timmons to testify the trial court held a hearing outside the presence of the jury on the admissibility of Timmons' testimony regarding the extraneous offense. The court appointed counsel to represent Timmons during her testimony. Outside the presence of the jury Timmons testified that she worked with appellant and overheard appellant telling another co-worker that he and his wife's cousin "had hooked up the night before." Appellant objected to Timmons' testimony arguing that the evidence was more prejudicial than probative. The trial court sustained appellant's objection and Timmons did not testify before the jury.
On appeal, appellant argues that his counsel should have objected when Elrod testified that appellant said a co-worker accused him of having sex with the complainant's older sister. Appellant further argues that counsel rendered ineffective assistance by failing to request a curative instruction and mistrial after the trial court sustained his objection to Timmons' testimony.
Code of Criminal Procedure article 37.07, section 3(a) governs the admissibility of evidence during the punishment phase of a non-capital trial. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). Article 37.07 states that as relating to a defendant's punishment, a trial court may admit evidence of "any matter the court deems relevant to sentencing," including the defendant's character or evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). As the court of criminal appeals has explained,
The Legislature has expressly provided that "relevant" punishment evidence includes, but is not limited to, both character evidence in the form of opinion testimony as well as extraneous-offense evidence. Because there are no discrete fact issues at the punishment phase of a non-capital trial, we have ruled that the definition of "relevant," as stated in Rule 401 of the Texas Rules of Evidence, does not readily apply to Article 37.07. What is "relevant" to the punishment determination is simply that which will assist the fact finder in deciding the appropriate sentence in a particular case. When the jury assesses punishment, it must be able to tailor the sentence to the particular defendant, and relevance is simply "a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case."Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006)). Evidence of a defendant's prior, extraneous offenses may be admissible under article 37.07 to show whether a defendant is a good candidate for community supervision. See Sims, 273 S.W.3d at 296.
Appellant did not file a motion for new trial in this case, and this is not a habeas corpus proceeding; accordingly, the record before us does not contain any express explanation for counsel's conduct. In the face of a silent record regarding counsel's rationale, we will not find ineffective assistance 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)
Given that appellant applied for community supervision, any information about his character that was relevant to his suitability for community supervision was admissible. See Sims, 273 S.W.3d at 296. In determining whether appellant can adequately complete the demands of community supervision, a jury might rationally want to take into account testimony that the appellant committed another offense similar to the one to which he pleaded guilty. Evidence of appellant's extraneous offense was admissible during punishment; therefore, counsel did not render ineffective assistance in failing to object to such testimony. See Sifuentes v. State, 494 S.W.3d 806, 813 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("Trial counsel's failure to object to admissible evidence does not constitute ineffective assistance of counsel.").
C. Trial counsel did not render ineffective assistance for failure to object to an expert who testified after hearing the complainant's testimony.
Before testimony began on punishment the trial court invoked the rule of exclusion of witnesses and instructed the witnesses that they could not be in the courtroom while another witness was testifying, could not review a document prepared by another witness, and could not speak with another witness on the matter before them. See Tex. R. Evid. 614.
Ashley Rios, a licensed clinical social worker and licensed professional counselor, testified about her training in working with child victims of abuse and sexual assault. Rios testified that she had counseled approximately 180 children in five years of counseling. Rios did not counsel the complainant but observed her testimony in the courtroom. The prosecutor asked Rios whether she observed anything about the complainant's testimony that would "link back to possible effects of sexual abuse[.]" Rios testified she observed that the complainant had difficulty communicating some of her answers and would cover her face and mouth indicating embarrassment and possibly shame. Rios testified that the effects of sexual assault on a victim often include feelings of fear, anxiety, depression, anger, and sadness. Victims often engage in coping mechanisms including using drugs or alcohol.
Rios testified that the complainant's desire not to be left alone is a common trait in victims of sexual assault. She also testified that personal relationships can also be affected. Long-term effects of sexual assault could include post-traumatic stress symptoms including avoidance, not wanting to talk about the assault, and avoiding triggers that remind a victim of the assault. Victims may have trouble sleeping, may experience flashbacks, and may develop depression and/or anxiety throughout their life. Rios clarified that her description was broad with regard to side effects experienced by sexual assault victims in general and she did not know whether the complainant suffered from any of those effects.
Texas Rule of Evidence 614 codifies the witness sequestration rule. When invoked by either party or the trial court, the rule mandates the exclusion of witnesses from the courtroom during trial, so they cannot hear the testimony of other witnesses. This rule prevents the testimony of one witness from influencing the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). Relevant here, the rule expressly "does not authorize" the exclusion of four types of individuals. Tex. R. Evid. 614. One such category of exempted individuals is "a person whose presence a party shows to be essential to presenting the party's claim or defense." Id.
Appellant argues that trial counsel rendered ineffective assistance by failing to object to Rios' testimony because Rios was in the courtroom when the complainant testified. A trial court, however, may allow an expert witness to remain in the courtroom during a witness's testimony if the expert plans to base her opinion on evidence offered at trial. See Martinez v. State, 867 S.W.2d 30, 40 (Tex. Crim. App. 1993). Rios was just such an expert; she offered testimony on the effects suffered by a victim of sexual assault. Because the State offered Rios's testimony as an expert on the damage caused to victims of child sexual assault, there was no danger that her testimony would have been influenced by hearing the testimony of other witnesses. Rios was not a fact witness; her testimony was influenced by her expertise and experience with victims of child sexual assault.
The trial court would have acted within its discretion if it overruled an objection to Rios' testimony, had one been made. See generally Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (stating failure to object to evidence is not deficient performance unless trial court would have erred by overruling objection). We conclude that appellant did not meet his burden to prove that his counsel's performance in this regard fell below an objective standard of reasonableness. See Goodspeed, 187 S.W.3d at 392. We overrule appellant's second issue.
CONCLUSION
Having sustained appellant's first issue, we hold appellant has the right to appeal. Having overruled appellant's second issue challenging his trial counsel's representation, we affirm the trial court's judgment.
/s/ Jerry Zimmerer
Justice Panel consists of Justices Jewell, Bourliot, and Zimmerer. Do Not Publish — Tex. R. App. P. 47.2(b).