Opinion
No. 05-16-00756-CR No. 05-16-00757-CR
05-31-2017
DANIEL ALBERTO MONTOYA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No.'s F-1431191-R, F-14-1192-R
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Whitehill
In this ineffective assistance of counsel direct appeal, appellant challenges his convictions for aggravated sexual assault of his two daughters, arguing that trial counsel's performance was deficient because he did not: (i) schedule a hearing or get a ruling on his motion to sever, (ii) assert a Rule 403 objection to a third sister's extraneous offense testimony, or (iii) object to the expert's testimony or challenge her expertise.
As discussed below, because the record is silent as to trial counsel's rationale and there are strategic reasons that might explain his conduct, we cannot on this record conclude that appellant has shown that trial counsel's performance was deficient and need not address the harm element. We thus affirm the trial court's judgments.
I. Background
Appellant was charged in two separate indictments with aggravated sexual assault of a child younger than fourteen years of age. The complainants, DM and AM, are appellant's daughters. The State moved to consolidate the two offenses in a single trial, which the trial court granted, and appellant moved to sever. But his counsel did not set a hearing or obtain a ruling on the severance motion. Thus, the two offenses were tried together.
Prior to trial, the court conducted an article 38.37 hearing, and heard testimony concerning appellant's sexual assault from the complainants AM and DM, and another sister, GM. When the hearing concluded, the judge ruled that (i) the state had provided appellant with sufficient notice of the extraneous offense witnesses, (ii) the evidence was sufficient for the jury to find beyond a reasonable doubt that the extraneous offenses occurred, and (iii) the extraneous offense evidence could be used in the State's case in chief.
The trial judge's responsibility at such a hearing is to determine whether "the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed [a] separate offense beyond a reasonable doubt." TEX. CODE CRIM. PROC. ANN. 38.37, §2-a; Reichle v. State, No. 06-14-00073-CR, 2015 WL 392846, at *4 (Tex. App.—Texarkana Jan. 30, 2015, pet. ref'd) (mem. op.).
At trial, AM, DM, and GM testified without objection about the details of appellant's sexual assaults against them.
The State's witnesses also included Kelly Slaven, Director of Clinical Services for Dallas Children's Advocacy Center. Slaven previously worked as the Genesis Woman's Shelter's Clinical Director. She holds a master's degree in social work and is licensed as both a clinical social worker and a clinical social worker supervisor. Slaven did not provide any specifics concerning the charged offenses or interviews with the complainants. Instead, she testified generally without objection about the absence of uniformity concerning perpetrators, victims, or victim's responses.
When the trial concluded, the jury found appellant guilty on both aggravated sexual assault charges, and assessed punishment at seventeen years imprisonment for each offense. The court ordered the sentences to run consecutively, and entered judgment accordingly. Appellant did not move for a new trial.
II. Analysis
Appellant's sole issue argues that he received ineffective assistance of counsel because his lawyer did not (i) schedule a hearing or get a ruling on his motion to sever, (ii) assert a rule 403 objection to the sister's extraneous testimony, or (iii) object to the expert's testimony or challenge her expertise. According to appellant, allowing him to be tried on both indictments in one trial was highly prejudicial, as was the sister's extraneous offense testimony. He also claims that counsel should have challenged Slaven's expert qualifications and objected to her testimony about recall memory and outcry.
As discussed below, our record is insufficient to support a conclusion that counsel's performance was so deficient as to overcome the presumption of effectiveness.
A. Standard of Review and Applicable Law
We review ineffective assistance of counsel claims under the Strickland standard. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, the defendant must prove that (i) his or her trial counsel's representation was deficient and (ii) the deficient performance was so serious that it deprived him or her of a fair trial. Id.
Counsel's representation is deficient if it falls below an objective standard of reasonableness. Id. at 688. A deficient performance, however, deprives the defendant of a fair trial only if it prejudices the defense. Id. at 691-92. To show prejudice, appellant must demonstrate there was a reasonable probability that, but for counsel's unprofessional errors, the proceeding's result would have been different. Id. at 694. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. at 697.
Our review of defense counsel's performance is highly deferential, beginning with the strong presumption that counsel's actions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to counsel's strategy, we will not conclude that the defendant received ineffective assistance unless the challenged 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). It is not sufficient that the defendant show, with the benefit of hindsight, that counsel's actions or omissions during trial were merely of questionable competence. Id. Rather, to establish counsel's acts or omissions were outside the range of professionally competent assistance, the defendant must demonstrate counsel's errors were so serious that he or she was not functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Thus, in many cases, the defendant cannot meet the first Strickland prong because the direct appeal record is underdeveloped and does not adequately reflect trial counsel's alleged failings. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
B. Our Record on Direct Appeal
Appellant did not raise the ineffective assistance issue in a motion for new trial, and thus, as counsel acknowledges, the record is silent regarding the strategic reasons for trial counsel's conduct. When a defendant claims that his counsel was ineffective for failing to object to evidence, he generally must show that the evidence was inadmissible. See Ortiz v. State, 93 S.W.3d 79, 83 (Tex. Crim. App. 2002). There has been no such showing here as to the extraneous offense or expert testimony. In fact, the trial court's 38.37 ruling was that the extraneous offense evidence was sufficient for a jury to find that appellant committed them. Counsel does not explain, nor does the record demonstrate, why an additional objection to this testimony was likely to result in a different ruling.
Likewise, there is nothing to demonstrate that the trial court would have abused its discretion by denying the motion to sever. The court had ruled that the evidence of one offense was admissible extraneous evidence in the trial of the other offense. And a defendant's absolute right to severance does not apply to a defendant being prosecuted for aggravated sexual assault of a child "unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder . . . . " See TEX. PENAL CODE ANN. §§ 3.03(b)(2), 3.049(c); Matthews v. State, 152 S.W.3d 723, 730 (Tex. App.—Tyler, 2004, no pet.). There is no presumption that the joinder of cases involving aggravated sexual assault of children is unfairly prejudicial. Id. Here, there has been no showing that a hearing on the motion to sever would have resulted in severance of the cases.
Moreover, we can conceive of strategic reasons that might explain counsel's conduct. Most important, however, is that while trial counsel's actions may or may not be grounded in sound trial strategy, the record is silent as to counsel's rationale. See Wert v. State, 383 S.W.3d 747, 758 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Thus, on the record before us, we cannot conclude that counsel's conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392.
We resolve appellant's sole issue against him and affirm the trial court's judgments.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160756F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1431191-R.
Opinion delivered by Justice Whitehill. Justices Fillmore and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 31, 2017.
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1431192-R.
Opinion delivered by Justice Whitehill. Justices Fillmore and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 31, 2017.