Barfield v. State

Full title: CLARENCE ALAN BARFIELD A/K/A CLARENCE ALAN COATS, Appellant, v. THE STATE…

Court: Court of Appeals of Texas, Thirteenth District, Corpus Christi

Date published: Jul 29, 2004

No. 13-03-151-CR (Tex. App. Jul. 29, 2004)

Opinion

No. 13-03-151-CR

Memorandum Opinion delivered and filed July 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On appeal from the 24th District Court of De Witt County, Texas.

Before Justices YAÑEZ, RODRIGUEZ, and GARZA.

MEMORANDUM OPINION

Memorandum Opinion by Justice RODRIGUEZ.

Appellant, Clarence Alan Barfield a/k/a Clarence Alan Coats, was indicted for the offense of aggravated sexual assault to a child. After appellant entered a plea of not guilty, a jury convicted him, and the trial court imposed a sentence of ninety-nine years imprisonment. Appellant appeals from that judgment. The trial court has certified that this case "is not a plea bargain case, and the defendant has the right of appeal." See TEX. R. APP. P. 25.2(a)(2). Appellant's attorney filed a brief in which he concluded the appeal is wholly frivolous and without merit. Appellant has filed a pro se brief asserting sixteen points of error. We affirm the trial court's judgment. Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it. See id. at rule 47.4.

I. Anders Brief

Appellant's court-appointed counsel filed a brief in which he has concluded the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are the only possible errors in the record that might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim.App. 1974); see High, 573 S.W.2d at 812. Counsel certified to this Court that: (1) he diligently reviewed the record and researched the law applicable to the facts and issues presented; (2) in his opinion, no reversible error is reflected by the record and the appeal is without merit and is frivolous; (3) he set forth all points which might arguably support an appeal; and (4) he forwarded a copy of this brief to appellant at his last known address with a letter informing appellant of his right to examine the entire appellate record and to file a brief on his own behalf. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex.Crim.App. 1991); High, 573 S.W.2d at 813.

A. Prosecutorial Misconduct

As directed by Anders, counsel raises prosecutorial misconduct as a possible issue for our review. Appellant first argues the trial court should have granted a mistrial sua sponte because the State used the term "rape" during voir dire, opening statement, its case-in-chief, and closing argument. A trial court has authority to sua sponte declare a mistrial if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. See, e.g., Ward v. State, 520 S.W.2d 395, 397-98 (Tex.Crim.App. 1975) (trial court would have been justified in sua sponte ordering mistrial when indictment was fatally defective). In this case, the error about which appellant complains is not a procedural error. Additionally, appellant did not object to the use of the term "rape," and, thus, has failed to preserve error on this issue. See TEX. R. APP. P. 33.1; Montoya v. State, 43 S.W.3d 568, 572 (Tex. App.-Waco 2001, no pet.) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) (to preserve error, defendant must make timely and specific objection, request instruction that jury disregard matter improperly placed before it, and move for mistrial)). Counsel also raises the issue of prosecutorial misconduct based on the State commenting that appellant repeatedly raped the victim. The trial court sustained appellant's objection and instructed the jury to disregard that statement. The court, however, denied appellant's motion for mistrial. Appellant argues that the State's comment was made in violation of a motion in limine and that the violation should be taken into consideration in assessing the validity of this appellate claim of prosecutorial misconduct. See Blacklock v. State, 681 S.W.2d 155, 156-57 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd) (citing Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App. 1974) (State's attempt to circumvent the ruling of court, and wrongfully present evidence of extraneous charge of crime, served no purpose other than to inflame and prejudice minds of jurors). However, we find that the misconduct, if any, was cured when testimony regarding appellant's repeated actions was later admitted without objection. Moreover, the State notified appellant, pursuant to article 38.37 of the Texas Code of Criminal Procedure, of its intention to introduce evidence concerning appellant's repeated acts involving the victim. See TEX. CODE CRIM. PROC. ANN. art. 38.37 (Vernon Supp. 2004). Based on this analysis, we agree with counsel that this issue presented for our review is without merit.

B. Ineffective Assistance of Counsel

Counsel raises ineffective assistance of counsel as a second possible issue that might arguably support an appeal. Trial counsel did not object each time the prosecutor used "rape" for "aggravated sexual assault to a child." Appellant refers us to fifty-seven such instances in the record. The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex.Crim.App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.-Corpus Christi 2000, no pet.). 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. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.-Corpus Christi 2000, pet. ref'd). Following the test for determining ineffective assistance of counsel set forth in Strickland, we conclude, from a review of the totality of representation, appellant has not shown how his attorney's representation fell below an objective standard of reasonableness or that there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Moreover, in the absence of evidence of counsel's reasons for the challenged conduct, we assume there was a strategic motivation for not objecting to the use of the term "rape." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). Nonetheless, counsel suggests that an exception to Strickland, set out in United States v. Cronic, 466 U.S. 648, 659-600 (1984), applies in this instance. Cronic presumes prejudice where there has been actual breakdown in the adversarial process at trial. Id. at 657-58. However, only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial. Id. at 662. We cannot conclude, in this case, that the surrounding circumstances in this case justify such a presumption; thus, Cronic does not apply. Based on this analysis, we agree with counsel that this issue is without merit. We cannot conclude trial counsel's assistance was ineffective.

III. Pro Se Brief

Appellant filed a pro se brief and, by sixteen points of error, complains of (1) prosecutorial misconduct; (2) the trial court not providing an expert witness; (3) the trial court allowing the victim to testify at trial; (4) ineffective assistance of counsel; (5) insufficient notice of the charge against him; and (6) sufficiency of the evidence.

A. Prosecutorial Misconduct

By points of error one through six, appellant complains generally of prosecutorial misconduct. Arguments presented in points one, two, four, five, and six complain of the State's use of the term "rape." Applying the analysis set out in Section I.A. above, we overrule points one, two, four, five and six. Likewise, appellant's third point of error, complaining of prosecutorial misconduct when the State referred to the victim being repeatedly raped, has been addressed above. Appellant's third point of error is overruled.

B. Expert Witness

By his seventh point of error, appellant contends the trial court erred when it did not provide appellant with an expert witness. Before a trial court is authorized to appoint a defense expert, however, a defendant is required to show how an expert would help in his defense, and he must supply the court with information as to what type of evidence is to be offered against him and how an expert would help. See Rodriguez v. State, 906 S.W.2d 70, 72-73 (Tex. App.-San Antonio 1995) pet. dism'd, improvidently granted, 924 S.W.2d 156 (Tex.Crim.App. 1996). In this case, appellant did not ask for an expert, made no showing as to how an expert would help his defense, and did not give the trial court information as to what type of evidence was to be offered against him and how an expert would help.¹ Appellant contends the trial court should have appointed a defense expert sua sponte, in this instance. However, he provides no authority for this contention. Accordingly, we conclude there is no error, and overrule appellant's seventh point of error.

C. Competency of Witness

In point of error eight, appellant asserts the trial court erred by not declaring that the victim was unstable and should not testify against appellant at trial. Appellant contends that "under equal protection of the law [sic] requires that he be convicted on testimony of competent witness[es] [sic] be used against him at trial." We construe this argument as a complaint that the trial court erred in permitting a child witness to testify without an adequate determination of her competency under Texas Rule of Evidence 601(a)(2). See TEX. R. EVID. 601(a)(2). Rule 601 provides:

Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules: . . . (2) Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.

Id. Rule 601 creates a presumption that a person is competent to testify. Id.; Reyna v. State, 797 S.W.2d 189, 191 (Tex. App.-Corpus Christi 1990, no pet.). The trial court has no duty to conduct a preliminary competency examination on its own motion. McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App. 1998). However, rule 601(a)(2) places the power to determine a witness's competency in the hands of the trial court, Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App. 1995), and the trial court may resort to any examination that would tend to disclose a witness's capacity and intelligence. Clark v. State, 659 S.W.2d 54, 55 (Tex. App.-Houston [14th Dist.] 1983, no pet.). The issue of the competency of a child witness is generally a question for the trial court and its ruling will not be disturbed on appeal unless an abuse of discretion is shown. Broussard, 910 S.W.2d at 960. Inconsistencies and conflicts in the child's testimony do not automatically render her incompetent; rather they are simply factors affecting the weight of the child's credibility. Upton v. State, 894 S.W.2d 426, 429 (Tex. App.-Amarillo 1995, pet. ref'd). The child no longer needs to understand the obligation of the oath to be a competent witness. Dufrene v. State, 853 S.W.2d 86, 88 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). We have not been directed to, and we have not found, any objection in the record to the competency of the victim's testimony or to the lack of an adequate determination. In order to preserve any error for appellate review, a party must present a timely, specific objection to the trial court and secure an adverse ruling. TEX. R. APP. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). We conclude that appellant has not preserved for review the contention presented in his eighth point of error. Nonetheless, even had error been preserved as to the victim's competency to testify, we find no error. In this case, the victim was thirteen at the time of the offense and fifteen when she testified at trial. The trial court heard her testify outside the presence of the jury and before the jury. The trial court had an opportunity to see the witness, and to observe her demeanor, her manner in answering questions, and her apparent possession or lack of intelligence. Accordingly, after reviewing the entire record, we conclude that if error was preserved, the trial court did not abuse its discretion. Appellant's eighth point of error is overruled.

D. Ineffective Assistance of Counsel

Appellant challenges the effectiveness of his trial counsel by six points of error. In his ninth point, appellant argues that his trial counsel was ineffective because he: (1) failed to object to testimony as leading, to the State's outcry witness, to the State's explanation of the law during voir dire, and to the State's use of the term "rape"; (2) also used the term "rape" instead of "sexual assault to a child"; (3) failed to interview the victim or read her statements; and (4) failed to move to quash the indictment or to move for an instructed verdict. By his tenth, eleventh and twelfth points, appellant asserts trial counsel was ineffective because he: (1) failed to make himself aware of the laws and facts that govern the offense with which appellant was charged; (2) failed to request and examine medical records; (3) failed to interview medical personnel who examined and interviewed the victim; (4) failed to obtain an expert witness for the defense; and (5) failed to call a defense witness. In his thirteenth point, appellant further asserts that his trial counsel was ineffective because he failed to request a running objection to the use of the term "rape." Finally, in point of error fourteen, appellant contends he was denied his Sixth Amendment right to counsel because his trial counsel did not object to the indictment and the jury charge on the grounds that there was a fatal variance. Appellant contends his claim of ineffectiveness in this case is so apparent from the record that there is no necessity to require it to be raised on collateral review. See Massaro v. United States, 538 U.S. 500, 508-09 (2003); Cronic, 466 U.S. at 659-600; see also Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App. 2000) (in rare case where record on direct appeal is sufficient to prove counsel's performance was deficient, appellate court should address claim). Appellant maintains that the record amply reflects that the trial counsel did not craft a sound trial strategy and that viewed in its entirety, counsel's failures of pretrial investigation, preparation and trial performance were unprofessional and unreasonable. We disagree. The defendant bears the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). The defendant's burden is even more difficult when, as in this case, the defendant did not file a motion for new trial asserting ineffective assistance of counsel. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998); Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective and an appellate court will not find ineffectiveness based on speculation. Id. at 836; Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). The record before us is silent as to why appellant's trial counsel allegedly failed to act or to perform in the manner urged by appellant. Accordingly, appellant has not rebutted the presumption he was adequately represented; that these actions were part of his trial counsel's sound trial strategy. See Garcia, 57 S.W.3d at 440; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Gamble, 916 S.W.2d at 93. Only on further inquiry can an adequate determination be made as to whether counsel provided appellant with effective assistance. Moreover, our review of the record indicates that this is not one of those "rare cases" in which we can assess counsel's performance on a silent record. See Robinson, 16 S.W.3d at 813 n. 7. Therefore, following the test for determining ineffective assistance of counsel as set forth in Strickland, we conclude, from a review of the totality of representation, appellant has not shown how his attorney's representation fell below an objective standard of reasonableness, or that there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687.² We overrule appellant's points of error nine through fourteen. We note that although appellant's attempt at a direct appeal has been unsuccessful, he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004); Cooper v. State, 45 S.W.3d 77, 82 (Tex.Crim.App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex.Crim.App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson, 9 S.W.3d at 814-15.

E. Notice of Charge Against Him

Appellant complains by his fifteenth point of error that his constitutional rights were violated when he was denied proper notice of the charge made against him. Texas Code of Criminal Procedure 21.04 provides that "[t]he certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Tex. Code Crim. Proc. Ann. art. 21.04 (Vernon 1989). Generally, an indictment which tracks the statutory language satisfies constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App. 1998); see Moreno v. State, 721 S.W.2d 295, 299-300 (Tex.Crim.App. 1986). In this case, appellant was charged with aggravated sexual assault to a child. The indictment stated:

CLARENCE ALAN BAR[E]FIELD aka CLARENCE ALAN COATS on or about the 1st day of November, 2000 . . . did then and there unlawfully, intentionally and knowing sexually assault [A.H.] by causing his sexual organ to contact the female sexual organ of [A.H.], and the said [A.H.] was then and there younger than 14 years of age.

Section 22.021(a)(1)(B)(iii), aggravated sexual assault, states that "[a] person commits an offense . . . if the person . . . intentionally or knowingly . . . causes the sexual organ of a child to contact or penetrate the . . . sexual organ of another person, including the actor." TEX. PEN. CODE ANN. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2004). The indictment tracked this statutory language; language which we conclude defines the act constituting the offense in a manner that would inform appellant of the nature of the charge. See Mays, 967 S.W.2d at 406. Moreover, surplusage on the top of the indictment showed appellant was charged with aggravated sexual assault to a child, a first degree felony with a punishment range of five to ninety-nine years and a $10,000 fine. By this point of error, appellant appears to be arguing that there is a fatal variance between the indictment and the proof. See Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex.Crim.App. 2001). However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(h). Because appellant has not provided support for contentions made regarding a fatal variance, this argument is inadequately briefed. Appellant's fifteenth point of error is overruled.

F. Sufficiency of Evidence

By point of error sixteen, appellant contends that the evidence is legally and factually insufficient to prove the alleged offense against him at trial. Appellant's argument complains of insufficient evidence to establish he threatened the victim. This, however, is not an element of the offense charged. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2004). Appellant also appears to be arguing that there is insufficient evidence to establish an element of the offense, namely, that he caused "the sexual organ of a child to contact or penetrate the . . . sexual organ of another person, including the actor." TEX. PEN. CODE ANN. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2004). Appellant bases this contention on the testimony of the State's expert, Elisa Payne, M.D., who evaluated the victim because of an allegation of sexual assault. Dr. Payne testified that the examination occurred "approximately one week and one month after it had happened, and so, there were no cuts or tears or anything like that. There was evidence that she had . . . sexual intercourse before, because the pelvic exam, the physical exam is [sic] was relatively easy." In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). A jury "as the sole judge of the weight and credibility of the evidence" is free to accept or reject any evidence "even if that evidence was uncontradicted." Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App. 1994) (citing Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim. App. 1981)). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. On appeal, we measure the legal sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Poindexter v. State, 115 S.W.3d 295, 298 (Tex. App.-Corpus Christi 2003, pet. denied). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; see Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim. App. 2000). In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). We are not bound to view the evidence in the light most favorable to the verdict, and may consider the testimony of all the witnesses. Johnson, 23 S.W.3d at 10-12. In our factual sufficiency review, we are again required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7; Mosley, 983 S.W.2d at 254. We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd). Reviewing the evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319, we conclude that the jury, acting as a rational trier of facts, could have found beyond a reasonable doubt that the child was sexually assaulted by appellant. Thus, the evidence is legally sufficient to support appellant's conviction. Moreover, after reviewing all the evidence, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury's determination, nor is the proof of guilt greatly outweighed by contrary evidence. See Swearingen, 101 S.W.3d at 97. Thus, we conclude the evidence is also factually sufficient to support appellant's conviction. Appellant's sixteenth point is overruled.

III. Independent Review of Record

The Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed jurisdiction, the pretrial proceedings, voir dire, opening statement, presentation of the case, the charge, sufficiency of the evidence, jury argument, return of the verdict, the punishment phase, the trial court's judgment, and the effectiveness of counsel. We have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous.

IV. Conclusion

We conclude the appeal is without merit. The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam).