Opinion
No. 11-13-00157-CR
01-14-2016
MATTHEW ALLEN BARKSDALE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court Erath County, Texas
Trial Court Cause No. CR13859
MEMORANDUM OPINION
The jury convicted Matthew Allen Barksdale of aggravated sexual assault of a child and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ninety-nine years. In three issues, Appellant asserts that (1) the evidence at trial was insufficient to support his conviction, (2) the trial court erred by admitting Appellant's confession into evidence, and (3) Appellant's trial counsel rendered ineffective assistance of counsel. We affirm.
We note that the indictment reflects Appellant's name to be "Matthew Alan Barksdale" but that the judgment, in accordance with a correction addressed in open court, reflects Appellant's middle name to be "Allen."
Background Facts
C.C. is the mother of three children, including the victim in this case, four-year-old Jane LMG. Appellant is not Jane LMG's biological father. C.C. met Appellant in 2008 while working at a McDonald's restaurant in Brownwood, and the two developed a romantic relationship. Appellant and C.C., along with Jane LMG and another child the couple had together, K.B., began living together in a home in Stephenville in July 2012. Appellant was the only father figure that Jane LMG had known, and she referred to him as "Daddy." On the night of August 31, 2012, Appellant and C.C. left for work at a cleaning service and returned home around 2:45 a.m. C.C.'s father watched the children while C.C. and Appellant were at work.
"Jane LMG" is a pseudonym used by the parties at trial to refer to the victim. We will also use this pseudonym for the victim.
Appellant and C.C. went to bed around 4:00 a.m. on September 1. C.C. was awakened during the night by K.B.'s crying. C.C. picked up K.B. from her bed in another room and brought her back into bed with her and Appellant in the master bedroom. C.C. awoke again around 9:00 a.m. and discovered that Appellant was no longer in bed with her. C.C. walked down the hallway and found Appellant lying in bed with Jane LMG. Appellant woke up and returned to the master bedroom where he fell back asleep.
While eating breakfast that morning, Jane LMG told C.C. that "Daddy did the tee-tee thing." C.C. asked Jane LMG what she meant, and Jane LMG stated that Appellant spit in his hand and then rubbed it on her "tee-tee." C.C. then attempted to call a clinic, which was closed, and then called her father. C.C. then woke Appellant and confronted him about what Jane LMG had told her. Appellant denied that anything had happened and began crying.
C.C. took her daughters into the master bedroom and asked Jane LMG once more what had happened. Jane LMG repeated that "Daddy did the tee-tee thing," meaning that he spit in his hand and rubbed it on her "tee-tee." She then told her mother that he touched her "tee-tee" with his hand and with his "thing." Upon further inquiry by her mother, Jane LMG described her father's "thing" as "the thing that has all the hair on it." Jane LMG then demonstrated to C.C. that she was lying in bed in the fetal position when Appellant then pulled down her pants and underwear. C.C. asked Jane LMG, "[D]id he stick his finger or his thing inside of you?" Jane LMG replied that he did not. Jane LMG continued and said that "he had touched her tee-tee with his fingers and with his thing -- rubbed his thing on her tee-tee." Following this conversation, C.C. took Jane LMG to the local hospital.
At the hospital, C.C. was told that they first needed to see the police. After going to the police station, C.C. next took Jane LMG to Cook Children's Hospital in Fort Worth. The C.A.R.E. team at Cook Children's Hospital interviewed Jane LMG. Following the interview, Jane LMG underwent a physical examination.
Detective Orlando Gaitan subsequently interviewed Appellant about the sexual assault. Detective Gaitan recorded this interview. Appellant initially denied that any sexual assault had taken place. However, he later acknowledged that he "fingered" Jane LMG, apparently referring to digital penetration. In this regard, Detective Gaitan testified that Appellant confessed to penetrating Jane LMG's vagina. Appellant's trial counsel objected to Detective Gaitan's testimony on the grounds that it was hearsay and that the recording would constitute "the best evidence of what he said." The trial court overruled Appellant's objection. Detective Gaitan further testified that Appellant specifically stated that "he had penetrated [Jane LMG's] vagina with his finger." Appellant's recorded statement was subsequently entered into evidence by the State without objection from Appellant.
Analysis
In his first issue, Appellant challenges the sufficiency of the evidence to prove penetration and intent. We review a sufficiency of the evidence issue under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
We note at the outset that Appellant bases his sufficiency challenge on the premise that we are not to consider the testimony from Detective Gaitan that Appellant admitted to penetration or Appellant's own recorded statement to this same effect because these items of evidence were not properly admitted into evidence. This is a faulty premise. As noted previously, we consider all of the evidence in the record when conducting a sufficiency review, whether it was admissible or inadmissible. Winfrey, 393 S.W.3d at 767 (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)); Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) ("[A] reviewing court is permitted to consider all evidence in the trial-court record, whether admissible or inadmissible, when making a legal-sufficiency determination."). Accordingly, we consider these items of evidence in conducting our sufficiency review.
A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly, by any means, causes the penetration of the sexual organ of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2015). The State may prove penetration by circumstantial evidence, and the victim need not specifically testify that there was penetration. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); see Murphy v. State, 4 S.W.3d 926, 929 (Tex. App.—Waco 1999, pet. ref'd). Contact that is "more intrusive than contact with [the victim's] outer vaginal lips" amounts to penetration sufficient to sustain a conviction for aggravated sexual assault. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).
Appellant points out that much of the evidence, including the testimony of C.C., suggests that no penetration occurred. C.C. testified, "[A]nd then I asked her, well, did he stick -- did he penetrate you, and when I -- and how I said that to her was, did he stick his finger or his thing inside of you, and she said, no, she said, he did not." The prosecution then asked, "Did you use the word 'penetrate' or did you use 'stick it inside you'?" C.C. replied, "I said inside her tee-tee." The prosecution again asked, "So you never used the word 'penetrate'?" C.C. replied, "No, no."
Appellant also points out that Rebecca Sullivan, a pediatric nurse practitioner who spoke with and examined Jane LMG, never indicated that Appellant penetrated Jane LMG's sexual organ with his finger. However, Sullivan's testimony is inconclusive as to whether penetration occurred. She stated that it is possible that penetration or manipulation of the vulva could have occurred without causing pain or sensitivity to Jane LMG.
Despite C.C.'s and Sullivan's testimony, there still existed evidence of penetration. In the video recording of his police interview, Appellant confessed that he consciously "fingered" Jane LMG. He additionally provided details concerning her body position at the time, noted that she awoke when it happened, and stated that she did not say anything to him when it happened. Additionally, Detective Gaitan testified that Appellant admitted "[t]hat he had penetrated her vagina with his finger." Under the applicable standard of review, we must presume that the jury resolved any conflicts in the testimony in favor of the verdict. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. After reviewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the element of penetration beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Isassi, 330 S.W.3d at 638.
Appellant additionally challenges the sufficiency of the evidence supporting the conviction for aggravated sexual assault on the element of intent. A person commits the offense of aggravated sexual assault of a child when, as it applies to this issue, he intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means. PENAL § 22.021(a)(1)(B)(i). In the indictment, it was alleged that Appellant intentionally or knowingly penetrated the sexual organ of Jane LMG, a child younger than fourteen years of age, with his finger.
Appellant cites C.C.'s testimony that Appellant was only interested in mature women and that Appellant would sometimes engage in sexual acts with her when he was in a state of complete sleep. However, Appellant confessed to Detective Gaitan that he "fingered" Jane LMG. Additionally, he admitted that he was conscious during the assault. Detective Gaitan's testimony and Appellant's recorded confession were sufficient for a reasonable trier of fact to find the element of intent beyond a reasonable doubt. We overrule Appellant's first issue.
In his second issue, Appellant asserts that the trial court erred by allowing Detective Gaitan to testify about Appellant's confession to the offense. He contends on appeal that his statement to the detective did not comply with the requirements of Article 38.22 of the Texas Code of Criminal Procedure. Article 38.22, section 3 governs the admissibility of oral statements made by a defendant during a custodial interrogation. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West Supp. 2015). However, Appellant did not object to Detective Gaitan's testimony under Article 38.22. Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint is not preserved for appeal unless it was made to the trial court "by a timely request, objection, or motion" that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A); Resendez v. State, 306 S.W.3d 308, 312-13 (Tex. Crim. App. 2009) (purpose of specific objection requirement is to inform the trial court and give it an opportunity to rule and to give the opponent an opportunity to respond to the complaint); see TEX. R. EVID. 103 (Error may not be predicated upon a ruling that admits or excludes evidence unless a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.). Accordingly, Appellant did not preserve for appellate review a complaint to Detective Gaitan's testimony under Article 38.22. See Leza v. State, 351 S.W.3d 344, 353 & n.28 (Tex. Crim. App. 2011) (complaint of violation of Article 38.22 must be preserved for appeal). We overrule Appellant's second issue.
As noted previously, Appellant's counsel only objected to Detective Gaitan's testimony on the grounds that it was hearsay and that the recording would constitute "the best evidence of what he said."
In his third issue, Appellant asserts that he received ineffective assistance of counsel at trial. Appellant contends that his trial counsel was ineffective for three reasons: (1) counsel failed to properly object to Detective Gaitan's testimony regarding what Appellant said during his recorded confession; (2) counsel failed to object to the introduction of Appellant's recorded confession, which he alleges did not comply with the requirements of Article 38.22 of the Texas Code of Criminal Procedure; and (3) counsel failed to request the appointment of an expert witness to assist in the case even though Appellant had disclosed to counsel that he had been sexually abused as a child.
To determine whether Appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether Appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.
The Court of Criminal Appeals has said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If trial counsel did not have an opportunity to explain his actions, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We note at the outset of our analysis that the record is silent regarding trial counsel's reasons for his actions at trial.
Appellant's first and second sub-issues concern trial counsel's failure to object to the admission of Appellant's video-recorded confession and his failure to object to Detective Gaitan's testimony on the ground that it was based on the video-recorded confession. In order to prevail on these contentions, Appellant must establish that the evidence was inadmissible; the failure to object to admissible evidence does not constitute ineffective assistance. See Ex parte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012).
A statement made by an accused during a custodial interrogation cannot be used as evidence against him at trial unless he had been given proper warnings under Miranda and Article 38.22 and had knowingly, intelligently, and voluntarily waived the rights contained in the warnings prior to giving the statement. CRIM. PROC. art. 38.22; Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). However, if the statement does not stem from custodial interrogation, the warnings are not required, and the statement can be used against the accused at trial. CRIM. PROC. art. 38.22; see Melton v. State, 456 S.W.3d 309, 314 (Tex. App.—Amarillo 2015, no pet.).
Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. The defendant bears the initial burden of proving that the statement is the product of custodial interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). "[B]eing the 'focus' of an investigation does not necessarily render a person 'in custody' for purposes of receiving Miranda warnings or those required under article 38.22 of the Code of Criminal Procedure." Id. at 293. There are four general situations that may constitute custody for purposes of Miranda and Article 38.22: (1) the accused is physically deprived of his freedom of action in a significant way; (2) a police officer tells the accused he is not free to leave; (3) police officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) there is probable cause to arrest the accused, and police officers do not tell him that he is free to leave. Id. at 294.
Appellant acknowledged at the outset of his recorded statement to the police officers that he came to the police station on his own accord and that he was free to leave at any time. He answered their questions for approximately ninety minutes, after which the officers told him that he was free to leave. Under the totality of the circumstances, the record does not show that Appellant's confession was the product of a custodial interrogation and therefore inadmissible under Article 38.22. See Estrada v. State, 313 S.W.3d 274, 289-95 (Tex. Crim. App. 2010) (holding that defendant was not in custody when he voluntarily rode with police to the police station, was told he was not under arrest and was free to leave at any time, was told getting a lawyer was his choice, was told he did not have to speak with police, was questioned for five hours, and was able to return home after giving his statement). Accordingly, trial counsel's decision to not object to the statements under Article 38.22 did not constitute ineffective assistance because the record does not show that that the statements were inadmissible under the statute. See Ex parte Jimenez, 364 S.W.3d at 887.
Appellant further asserts that his trial counsel was ineffective in failing to request the appointment of an expert witness to assist in the case and testify about the sexual abuse that Appellant alleged that he experienced as a child. The record is silent as to why trial counsel chose not to request an expert witness. Furthermore, as noted by Appellant in his brief, "one cannot assess how such an expert will be received by the jury or whether it would prompt the State to hire its own expert." In the absence of evidence of trial counsel's reasoning or the substance of what the expert's testimony might be, the record does not establish that Appellant's trial counsel's decision not to request an expert on sexual abuse was so outrageous that no competent attorney would have engaged in it or that the outcome of the proceeding would have been different. We overrule Appellant's third issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE January 14, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.