Opinion
03-22-00633-CR
06-21-2024
Michael Bostic, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 460TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-19-500149, THE HONORABLE SELENA ALVARENGA, JUDGE PRESIDING
Before Justices Baker, Triana, Smith
MEMORANDUM OPINION
Gisela D. Triana, Justice
Appellant Michael Bostic challenges his convictions for two counts of aggravated sexual assault of a child under the age of six. See Tex. Penal Code § 22.021(a)(2)(B). In his sole issue, Bostic contends that the trial court denied him assistance of counsel during what he contends was a critical phase of the trial proceedings. Specifically, he contends that because the record is silent regarding whether the trial court made efforts to secure defense counsel's presence in response to several jury notes, he was therefore denied counsel. Because we presume the trial court complied with the statutory requirements absent any indication in the record otherwise, we affirm the trial court's judgment of conviction.
We only describe the witness testimony, evidence, and portions of the trial proceedings that are necessary to our resolution of Bostic's sole issue.
Bostic is the maternal uncle of the child victim, Karen. Mother testified that in the summer of 2018-when her daughter was ten years old-Karen made an outcry to her that she had been abused by an uncle when she was younger. Mother explained that there was some confusion at first as to which uncle Karen was referring, but after discussing physical appearance descriptors, considering the timeline of when Karen had been around her uncles, and showing Karen family photos online, Mother determined that Karen was describing Bostic, who is Mother's half-brother. About a month later, Mother reported the abuse to the police.
To protect the privacy of the minor victim, we will refer to her by the pseudonym, Karen, and we will refer to her mother and minor friend by their relationship to her rather than by name. See Tex. R. App. P. 9.10(a)(3).
Karen, who was fourteen at the time of trial, testified that when she was three or four, she was visiting her grandmother's home with her mother. She testified that while her mother was outside smoking, Karen and Bostic were inside the home alone when he grabbed her shirt, turned her around, pushed her against the inside of the front door, and pulled his pants down to his feet, which revealed his penis. Bostic then touched his penis to her mouth, attempting to insert it inside her mouth. This continued for about a minute until he ran to the bathroom. Karen testified that the same thing happened again a few days later, except his penis made contact with her mouth for a little bit longer-about a minute and a half-the second time. Karen explained that she did not tell her mother either time because she was confused the first time, scared the second time, and then chose to forget about it. She explained that when she was age ten, she remembered the abuse and told a friend. Karen's friend encouraged her to tell her mother, which she did.
After hearing all the evidence, the jury deliberated. The clerk's record contains five notes from the jury asking for portions of trial testimony or clarifications of facts. The record does not contain any acknowledgment or response to the notes from the judge or any mention of them in the reporter's record.
After deliberating, the jury convicted Bostic on two counts of aggravated sexual assault of a child under six years old. One week later, the trial court assessed punishment at twenty-five years for each conviction. See Tex. Penal Code § 12.32 (setting maximum punishment for first-degree felony at life imprisonment or 99-years' imprisonment); id. § 22.021(e) (defining aggravated sexual assault as first-degree felony); id. § 22.021(f)(1) (increasing minimum sentencing range to twenty-five years' imprisonment when victim was younger than six years old at time of offense). No motion for new trial was filed. Bostic appealed.
DISCUSSION
In his sole issue, Bostic contends that the trial court denied him assistance of counsel during a critical stage because the record is silent regarding whether the trial court made any effort to secure trial counsel's presence during any read back of testimony in response to the jury notes. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (noting that "the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings").
Article 36.27 of the Texas Code of Criminal Procedure directs how communication from the jury to the trial court and the trial court's responses should be conducted. It requires that before answering the jury's question, the trial court "shall use reasonable diligence to secure the presence of the defendant and his counsel." Tex. Code Crim. Proc. art. 36.27. It also requires that the trial court "shall answer any such communication in writing," that "[t]he written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant," and that "[a]ll such proceedings in felony cases shall be a part of the record and recorded by the court reporter." Id.
Bostic relies on Article 36.27 to contend that because no answer to the jury notes or showing of the trial court attempting to secure the presence of trial counsel is in the record, we should presume that the trial court denied Bostic his right to counsel at a critical stage. However, a presumption of regularity applies to Article 36.27 requirements when the record is silent regarding compliance by the trial court. See Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006) (presuming that trial court complied with Article 36.27 when record was silent regarding whether counsel was present when trial court answered jury questions in writing). Thus, unless the record establishes to the contrary, we presume that the trial court complied with Article 36.27. Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). This includes presuming that counsel was present. Word, 206 S.W.3d at 651-52. Further, federal due process does not prohibit an appellate court from presuming a trial court's compliance with Article 36.27 requirements on a silent record. Id. at 651.
Here, the record only includes copies of five jury notes in the Clerk's Record. No response from the trial court is found in the record, and no mention of any jury questions appear in the Reporter's Record. Thus, applying the presumption of regularity, we cannot conclude on this record that Bostic was denied counsel.
Bostic contends that he has rebutted the presumption of regularity. Specifically, he contends that "to hold that a silent record completely precludes a challenge to the absence of counsel effectively isolates such challenge on appeal, and exploits the precise absence of counsel attributable to a court's inaction." We understand Bostic to contend that the presumption of regularity should not be applied in this case in the interest of justice because to do so would foreclose any avenue he would have for relief. We disagree. The State responds that Bostic had an opportunity to pursue this claim in a motion for new trial because the jury notes were filed in the district clerk's office on September 22, 2022, the same day they were created and seven days prior to the sentencing hearing. Thus, the State contends that any denial of counsel was available for discovery by counsel in time to file a motion for new trial. The State further argues that direct appeal is not the only avenue a criminal defendant has to raise this type of claim. We agree. C.f. Jensen v. State, 66 S.W.3d 528, 542 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) ("The record is best developed by an application for a writ of habeas corpus or a motion for new trial.").
Because we conclude that Bostic has not overcome the presumption of regularity regarding the trial court's compliance with Article 36.27, we overrule his sole issue.
Because we conclude that the trial court did not deny Bostic counsel based on the silent record before us, we do not reach his contention that any denial of counsel occurred at a "critical stage." See Tex. R. App. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal."). For the same reason, we also do not address Bostic's contention that Cronic applies and that we should presume prejudice. See United States v. Cronic, 466 U.S. 648, 659 (1984).
CONCLUSION
Because we overrule Bostic's sole issue on appeal, we affirm the trial court's judgment of conviction.
Affirmed.