Opinion
No. 13-09-00006-CR
Opinion delivered and filed February 11, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 24th District Court of Goliad County, Texas.
Before Justices RODRIGUEZ, GARZA, and BENAVIDES.
MEMORANDUM OPINION
Appellant, James Rankin Robertson a/k/a James Franklin Robertson, appeals his conviction for aggravated sexual assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii), (a)(2)(A), (e) (Vernon Supp. 2009). By three issues, which can be categorized as two, appellant contends that his conviction should be reversed because: (1) his retained trial counsel was ineffective; and (2) the trial court erred in admitting a taped recording of a conversation between appellant and the alleged victim in this case. We affirm.
I. BACKGROUND
Appellant was charged by indictment on May 30, 2008, for one count of aggravated sexual assault wherein it was alleged that appellant forced R.R., his thirteen-and-a-half year old granddaughter, to engage in oral sex with him and threatened her with a knife while telling her not to tell anyone about the incident. The case proceeded to trial, and the jury returned a guilty verdict on the underlying charge. The jury sentenced appellant to ninety-nine years' incarceration in the Institutional Division of the Texas Department of Criminal Justice. After appellant retained new counsel, this appeal ensued.II. INEFFECTIVE ASSISTANCE OF COUNSEL
By his first issue, appellant contends that he was denied effective assistance because his trial counsel opened the door to damaging extraneous offense testimony. Appellant further contends that he was denied effective assistance because of his trial counsel's allegedly "outrageous" courtroom behavior.A. Applicable Law
To establish ineffective assistance of counsel, appellant must show: (1) his attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that appellant must show a reasonable probability that, but for counsel's errors, the fact finder would have had a reasonable doubt as to appellant's guilt); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.). Whether this test has been met is to be judged on appeal by the totality of representation, not by any isolated acts or omissions. Jaynes, 216 S.W.3d at 851. 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) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)). Our review of counsel's representation is highly deferential, and we will find ineffective assistance only if the appellant overcomes the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to "reasonably effective assistance of counsel" does not guarantee errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). Moreover, the acts or omissions that form the basis of appellant's claim of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d at 814; Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for counsel's actions usually will not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-14. To warrant reversal without affording counsel an opportunity to explain his actions, "the challenged conduct must be 'so outrageous that no competent attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).B. Extraneous Offense Evidence
Appellant first complains about his trial counsel's questioning of one of appellant's friends, Don Mitchell. Mitchell testified as to appellant's demeanor and standing in the community; however, he also testified to the following:Q: [Appellant's trial counsel] Ever known this man to be violent?
A: [Mitchell] Never have I known this man to be violent.
Q: Anything in his character that has ever indicated to you he's capable of raping anyone, much less his own granddaughter?
A: Absolutely not.Appellant asserts that Mitchell's testimony regarding appellant's capability of raping others opened the door for the State to introduce the rebuttal testimony of Leigh Ann Soderholtz, appellant's adult daughter. Soderholtz testified that appellant sexually abused her "[m]any, many, many times" while she lived with appellant and his wife. She stated that appellant sexually abused her from when she was six or seven years old until she moved out of appellant's house when she was eighteen years old. She also testified that appellant's sexual abuse of her was frequent and involved fondling, oral sex, and an instance of sexual intercourse. Appellant's trial counsel did not cross-examine Soderholtz. While we recognize that Soderholtz's testimony was damaging to appellant's case, trial counsel's questioning of Mitchell was not the only instance in which the door was opened for the State to submit extraneous offense evidence. Appellant himself testified during the guilt-innocence phase and, in response to the State's questioning, denied ever having sex with Soderholtz or sexually contacting R.R., the victim in this case. See Bass v. State, 270 S.W.3d 557, 563 (Tex. 2008) (citing Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (holding, in a prosecution for sexual assault of a child under seventeen, that defendant's sweeping direct-examination testimony denying any sexual misconduct with minors opened the door to admission of extraneous offense evidence of defendant's sexual misconduct with another minor to rebut this sweeping testimony)). Therefore, appellant's own testimony during the guilt-innocence phase belies his contention that his trial counsel's alleged wrongful questioning of Mitchell was the sole cause for opening the door to the admission of Soderholtz's rebuttal testimony. Furthermore, because the record is silent as to trial counsel's strategy, we cannot say that trial counsel's questioning of Mitchell regarding appellant's capability to rape others, his demeanor, and his standing in the community was not the result of a sound and reasonable trial strategy. See Thompson, 9 S.W.3d at 813-14; Dewberry, 4 S.W.3d at 757 ("Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."); see also Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.-Corpus Christi 1999, pet. ref'd) (noting that "we must presume that trial counsel is better positioned than the appellate court to judge the pragmatism of the particular case," and that trial counsel "made all significant decisions in the exercise of reasonable professional judgment"). Based on the foregoing, we conclude that appellant has not met his burden in overcoming the strong presumption that trial counsel provided professional and objectively reasonable assistance with respect to the questioning of Mitchell. See Thompson, 9 S.W.3d at 813; Dewberry, 4 S.W.3d at 757; see also Strickland, 466 U.S. at 684; Jaynes, 216 S.W.3d at 851.