Opinion
No. 05-09-00158-CR
Opinion issued August 30, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80595-07.
Before MOSELEY, BRIDGES and FILLMORE.
MEMORANDUM OPINION
Appellant Shahram Shakouri appeals his aggravated sexual assault conviction and accompanying sentence. We affirm.
Background
Appellant, who had lived in the United States for nearly 30 years, married Afsaneh Marous in Iran in January 2006. After the wedding, appellant returned to the United States, while Marous and her twelve-year-old son awaited their visas. In May 2006, Marous and her son arrived in Dallas. That night, Marous alleged appellant threw her onto the bed, handcuffed her arms above her head and raped her. Marous stated the violence continued during sex, in that appellant would slap, bite and punch her. Marous also testified that the first time appellant anally raped her, he put his elbow into her back, pressed her head sideways onto the mattress with his hand and forced his penis into her backside with such force that it displaced the mattress. She also stated that during anal sex, he would clutch her hair and pull her head back toward him, yanking out her hair and ignoring her complaints. Marous explained that he would press his weight against her so he could bind her ankles to the bed with straps that left marks on her legs. He also used sex toys in her vagina and anus. Marous testified that appellant seemed to derive pleasure from her pain and explained when appellant failed to use lubrication for the sex toys, she would bleed. She complained that if she said "no," he would hit and bite her. Marous testified that appellant claimed if she said anything to anybody, "[he] would kill [her] and [her] child." She stated she was scared of him and for her son, and tried to appease him to calm him down. Beth Lyons, a member of the Baha'i church that both appellant and Marous attended, testified appellant "was controlling about what [Marous] did, who she got to see, who she got to interact with, [and] who she was allowed to talk to on the phone." Marous testified appellant would not let her go anywhere by herself. She explained:I was like a prisoner in that house. If anybody would want to come to our house, he had to know. If my mom wanted to call me, she has to call during the time he was at home. If I would speak more than ten minutes, he would ask me — be suspicious of me. He would tell me just call on Saturdays or Sunday, that way [he] would be home. He didn't want me to have any contact with my family. He took advantage of me being alone, not having anybody, not having money. I didn't have nothing. No job. I couldn't speak any English. He took advantage of all of this.After Marous and her son had been in the United States a few months, appellant moved them to a house in Prosper, but Marous testified appellant continued to rape and sodomize her with the sex toys. She stated, at one point, she took a home pregnancy test and discovered she was pregnant. She knew appellant did not want any more children and testified she was scared to tell him. When she did, appellant was angry and for two "bad days," he raped and punched her on the side. She explained she eventually began to bleed and was no longer pregnant. Lyons testified that, over the course of several months, the women in the Baha'i church noticed a change in both Marous and her son. Her son appeared more withdrawn and would sit with his mother at church gatherings instead of playing with the other children. During church gatherings, Marous cried frequently during prayer time and one church member thought she appeared to be losing her hair, especially at the crown of her head. Her son spent several hours in front of the computer webcam with Marous's sister, Ahdieh, who lived in Italy. Ahdieh testified her nephew did not want her to leave her computer, so she kept it on, even when she slept, so her nephew would have someone in his presence. Marous testified that, one night after appellant raped her, she was in pain and called Akram Gheisar, a church member who spoke Farsi. She asked Gheisar to speak to the church's Assembly on her behalf. Gheisar told Lyons, who chaired the Assembly, that appellant was abusing Marous. The Assembly wrote a letter to Marous in Farsi, advising her that, for her own safety and that of her son, she should go to a women's shelter in Plano. Lyons explained Marous was too afraid to have the letter in her possession, so Gheisar kept the letter until several weeks later. Around that time, Ahdieh came for a visit at her nephew's insistence. Ahdieh took the entire family on a trip to California and Las Vegas. Near the end of the trip, while appellant was taking a shower in the adjoining hotel room, Marous told Ahdieh that appellant was beating her and that she was losing her hair because appellant was pulling it out. Marous showed her sister black marks on her wrists and ankles, which Ahdieh, a medical doctor, thought resembled marks left behind by handcuffs. Marous testified she suspected appellant knew of her disclosure to her sister, because, on their trip home, he called her on her cell phone (even though she was in his line of sight) and threatened to rape and kill her. Ahdieh heard appellant tell Marous, "I will rape you as soon as your sister will go back to Italy in a way that you will not be able to sit up." Marous testified that, when they returned home, appellant called his brother and told him he would kill Marous, her son, and Ahdieh. Frightened by what she overheard, Marous went into the room her sister was staying in and the two women hid in the closet. Her son testified he overheard appellant say, "I'm going to set them on fire; I'm going to kill them." The next morning, after appellant left for work, Marous and Ahdieh spoke with some of the Baha'i church members, who read Marous the letter they had prepared, recommending a particular women's shelter that had a counselor who spoke Farsi. That same morning, Marous, her son and Ahdieh gathered their things and were loading them into the cars of church members when appellant arrived. To keep the peace, church members called the Prosper police. Officer Baxter testified that, when he arrived, Marous and her son were scared and Ahdieh started translating what Marous was saying. At that point, Baxter heard information suggesting a crime had occurred, specifically, appellant's threat to kill Marous, her son and Ahdieh. The police investigation began. After Marous moved into a shelter, she met again with Officer Baxter and told him about the sexual abuse through the Farsi-speaking counselor at the shelter. Officer Baxter took photographs of the marks on Marous's ankles that corroborated her statements about the abuse. He applied for an arrest warrant for appellant and a search warrant for his home. When officers executed the search warrant, they found a bag in the closet of the master bedroom that held various sex toys: (1) dildos; (2) a penis sheath; (3) a fake vagina; (4) a penis pump; (5) vibrators; and (6) a nylon restraining device. Officers also seized a laptop computer, along with a few flash drives. FBI computer forensic expert Jesse Basham testified he reviewed the flash drives and found more than 150 pornographic movies, mostly involving anal sex and bondage. At trial, a copy of all the electronic files Basham reviewed was admitted. Still shots from the movies were also admitted over appellant's objection. At trial, appellant called a medical doctor who had reviewed Marous's medical records and explained that her records did not reflect the kind of trauma to the anal cavity he would expect to see if someone had forced a large dildo into her anal cavity without lubricant or on a regular basis. Appellant also called an immigration attorney, who explained that a non-citizen spouse could gain legal status in the United States through a claim that her citizen-spouse was abusing her. Appellant also testified on his own behalf and claimed that it was Marous, not he, who had the huge sexual appetite. He alleged the sex toys were hers and she brought them with her from Iran. He claimed to have never used the objects, though he admitted to watching an anal sex pornographic movie that he claimed Marous had sent him. He also contended it was Marous who downloaded the pornographic movies of women in dog chains and women being anally raped. Although Marous had moved out by the time the police executed the search warrant and found the flash drives, appellant testified it was possible that Marous or her son could have planted the drive in his computer bag. Officer Baxter, however, testified Marous's house key no longer worked by the time the police executed the search warrant. The jury convicted appellant of aggravated sexual assault. This appeal ensued.
Analysis
Appellant raises three issues on appeal. First, he asserts the jury charge at the guilt-innocence stage of trial erroneously permitted his conviction on a non-unanimous verdict, causing appellant reversible harm. Second, he alleges he was denied his right to the effective assistance of counsel. Finally, appellant contends the trial court abused its discretion in admitting pornographic movies and photo clips from those movies over his rule 403 objections. We turn to his first issue, whether the trial court erroneously permitted his conviction on a non-unanimous verdict. During the first discussion of the charge, appellant objected, stating "the Court is encouraging the jury to find by a less than unanimous verdict." During the second discussion of the charge, the Court sustained appellant's objection raised during the first discussion and drafted a revised charge. Appellant objected to the revised charge:If the Court does that, then that is permitting the State a disjunctive result, and it is contrary to the Court's instruction that the burden of proof must be beyond a reasonable doubt and a unanimous verdict of the jury. And they can't answer any of these charges unanimously because you've given them too many options towards the end.
I appreciate the Court's attempt to solve this problem, but this does not go far enough to do, and we believe this is a fundamental error. It's giving the State an alternative to argue to the jury. Well, if you don't believe him threatening her, you can believe he threatened [her son]. And for that reason we believe it's a prejudgment of the Court.The court overruled appellant's objection and submitted the following relevant application paragraphs to the jury:
Now if you unanimously find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly cause the penetration of the sexual organ of [Marous] by defendant's penis, without the consent of [Marous], and the defendant did then and there by acts or words place [Marous] in fear that death or serious bodily injury would be imminently inflicted on [Marous] or [her son], then you will find the defendant guilty as charged in the indictment.
Or if you unanimously find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly cause the penetration of the sexual organ of [Marous] by a plastic dildo, without the consent of [Marous], and the defendant did then and there by acts or words place [Marous] in fear that death or serious bodily injury would be imminently inflicted on [Marous] or [her son], then you will find the defendant guilty as charged in the indictment.
Or if you unanimously find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly cause the penetration of the anus of [Marous] by defendant's penis, without the consent of [Marous], and the defendant did then and there by acts or words place [Marous] in fear that death or serious bodily injury would be imminently inflicted on [Marous] or [her son], then you will find the defendant guilty as charged in the indictment.
Or if you unanimously find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly cause the penetration of the anus of [Marous] by a plastic dildo, without the consent of [Marous], and the defendant did then and there by acts or words place [Marous] in fear that death or serious bodily injury would be imminently inflicted on [Marous] or [her son], then you will find the defendant guilty as charged in the indictment.(italicized emphasis added). Our first duty in analyzing a jury charge issue is to determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). Then, if we find error, we analyze that error for harm. Id. Here, appellant complains the jury charge deprived him of his right to a unanimous verdict. When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts. See Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) ("[t]he unanimity requirement is undercut when a jury risks convicting the defendant of different acts, instead of agreeing on the same act for a conviction"). Under our state constitution, jury unanimity is required in felony cases and, under our state statutes, unanimity is required in all criminal cases. See Ngo, 175 S.W.3d at 745 (citing Francis, 36 S.W.3d at 126 (Womack, J. concurring) (citing Tex. Const. art. V, § 13; Tex. Code Crim. Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034-45.036)); Brown v. State, 508 S.W.2d 91 (Tex. Crim. App. 1974) (appellant was entitled to unanimous jury verdict). In this context, unanimity means that each and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo, 175 S.W.3d at 745; see also United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977) (the unanimity rule requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged). It is not enough that the jurors might be convinced beyond a reasonable doubt that the defendant committed "a series of violations in concert with others," it must be unanimous about each specific violation. Ngo, 175 S.W.3d at 747 (citing Richardson v. United States, 526 U.S. 813, 816 (1999)). Here, the trial court charged the separate offenses in the disjunctive. However, error does not occur simply because separate offenses are charged disjunctively. Ngo, 175 S.W.3d at 749. Rather, error occurs when the court fails to instruct the jury that it must be unanimous in deciding which one, or more, of the four disjunctively submitted offenses it found appellant committed. See id. In Ngo, the Court of Criminal Appeals determined that "the application paragraphs submitted to the jury . . . would have been clearly correct had each paragraph included just one additional word: 'unanimously,' such that all twelve jurors would immediately realize that they had to agree on one specific paragraph which set out one specific criminal act." Id. In the case before us, each of the referenced application paragraphs includes the word "unanimously." In fact, the charge before us is substantially similar to the version the Ngo court proffered as "a clearly correct version of the application paragraphs." See id. at 749 n. 44. Thus, the addition of the word "unanimously" before the description of each distinct criminal act in the application is one way to implement the legal requirement that the jury's verdict be unanimous. See id. We conclude the trial court did not commit error in the charge to the jury. Id. at 743. Thus, we overrule appellant's first issue. In his second issue, appellant alleges he was denied his right to the effective assistance of counsel when defense counsel failed to: (1) file a motion to suppress regarding seizure of the computer and flash drives; (2) make proper objections to admission of pornographic movies and photos; (3) demand that the State make an election as to the specific offense; (4) request a sexual assault lesser-included offense instruction; (5) request a limiting instruction regarding November 28 threats; and (6) object to improper voir dire amounting to unsworn expert testimony. A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations 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 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as "ineffective." Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is "simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). The record is silent as to why appellant's trial counsel chose not to: (1) file a motion to suppress regarding seizure of the computer and flash drives; (2) make proper objections to admission of pornographic movies and photos; (3) demand that the State make an election as to the specific offense; (4) request a sexual assault lesser-included offense instruction; (5) request a limiting instruction regarding November 28 threats; or (6) object to improper voir dire amounting to unsworn expert testimony. Therefore, appellant has failed to rebut the presumption counsel's decisions were reasonable, and we overrule appellant's second issue. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. In his third issue, appellant contends the trial court abused its discretion in admitting pornographic movies and photo clips from those movies over his rule 403 objections. We review a trial court's decision to admit evidence over objection under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). The pornographic movies, admitted as State's Exhibit 17, were confiscated pursuant to the search warrant. The photo clips, admitted as State's Exhibits 18-29, were still photos taken from State's Exhibit 17, so that the State did not "have to play the videos in front of the jury," but could "assist the jury in understanding the type of pornography that was found on the memory sticks belonging to [appellant]." We first examine appellant's complaint that State's Exhibit 17 was admitted over his rule 403 objections. In order to preserve error, a party must object on the record and obtain a ruling from the trial court. Tex. R. App. P. 33.1. Here, appellant did not object to the admission of State's Exhibit 17 on rule 403 grounds. Rather, appellant objected on the basis of the work product and attorney-client communication privileges. Because appellant's trial objection does not match his argument raised here on appeal, appellant has failed to preserve error as to State's Exhibit 17. See Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998) (requiring issue on appeal to comport with trial objection to preserve issue for appeal); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal). With regard to States Exhibits 18-29, the photo stills, appellant objected to their admission on rule 403 grounds, i.e., the probative value was substantially outweighed by the danger of unfair prejudice. A rule 403 analysis may include considerations of: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. See Rodriguez v. State, 203 S.W.3d 837, 843 (Tex. Crim. App. 2006) (citing Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000)). For this Court to overrule the trial court's rule 403 analysis, we would have to say that the evidence lay outside the "zone of reasonable disagreement." Rodriguez, 203 S.W.3d at 843 (citing Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002)). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Evidence is "relevant" that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Crim. Evid. 401; Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1990). The definition of "relevance" is necessarily broad. Montgomery, 810 S.W.2d at 391. The trial court must rely in large part upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has "any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. In this case, Prosper police executed a search warrant of appellant's home after Marous and her son had moved from the home. A computer and flash drives were taken, pursuant to the warrant, to North Texas Computer Forensic Lab. There, FBI agent Jesse Basham analyzed the computer and flash drives. He discovered the pornographic movies (States's Exhibit 17) and made individual still photos (State's Exhibits 18-29) from the porn movies. Basham testified the still photos were retrieved from the memory sticks obtained from appellant's residence. Based upon the foregoing, we conclude the trial court could have properly determined the still photos had a connection to appellant and a bearing on this case. Further, the still shots were relevant to show that someone in appellant's home had sexual proclivities toward anal sex and female bondage, which corroborated Marous's description of events. See Montgomery, 810 S.W.2d at 386. Also, since State's Exhibit 17 was already in evidence, the still shots from those movies could not have been more prejudicial than probative since they shortened the time needed to convey to the jury what the movies contained. See Gallo, 239 S.W.3d at 762. We, therefore, conclude the trial court did not abuse its discretion in admitting States's Exhibits 18-29. See McCarty, 257 S.W.3d at 239. Thus, we overrule appellant's third issue. Because we have overruled appellant's three issues, we affirm the judgment of the trial court.