Opinion
No. 05-10-00695-CR
04-24-2012
BENJAMIN WAYNE BURDEN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED AS MODIFIED; Opinion Filed April 24, 2012.
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82045-07
OPINION
Before Chief Justice Wright and Justices FitzGerald and Campbell
The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.
This is an appeal from a conviction of two counts of aggravated sexual assault of a child and one count of indecency with a child. A jury convicted appellant of all three counts and assessed punishment at life imprisonment for each aggravated sexual assault count and twenty years' imprisonment on the indecency count. The jury also assessed a $10,000 fine on each count. In two points of error, appellant contends the judgments should be modified to correct the name of the judge
One judgment was entered for the two aggravated sexual assault counts. A separate judgment was entered for the indecency count.
who presided in his case and further contends he was denied the effective assistance of counsel. We affirm the judgments as modified. Facts
The evidence showed that the complainant, R.D., was three years old when her mother, Christy, married appellant. Appellant first molested R.D. when the family lived in Germany and R.D. was four or five years old. While Christy was gone, appellant had R.D. take a bath. He then laid her on her back, spread her vagina open with his fingers, and looked inside R.D.'s vagina. When Christy returned home, R.D. told her what happened. Appellant admitted to Christy that he opened R.D. up "to see if she was clean."
Subsequently, Christy and R.D. moved back to Texas. Appellant moved back to Texas sometime later, and the family began living with appellant's parents in Mesquite, when R.D. was six or seven. During this time, appellant molested R.D. numerous times, in a variety of ways, including penetration of her vagina with his penis, forced fellatio, and indecency by contact by touching her breasts and vagina.
When R.D. was in the fourth grade, the family moved to Plano. During this time, appellant forced R.D. to perform fellatio on him and he touched R.D.'s vagina. At age eleven, R.D. made an outcry to Christy and to Christy's friend. R.D. was so traumatized by the experience of the outcry that she began rocking herself and cried so hard that she gagged and vomited.
Appellant was charged in one indictment with the counts made the basis of this prosecution. Sometime after the indictment was filed, Christy submitted an affidavit of non-prosecution. R.D. told forensic interviewers she had fabricated the abuse allegations. Subsequently, however, R.D. told investigators appellant had prepared the affidavit of non-prosecution, and put pressure on her to recant her rendition of the facts. At trial, R.D. retracted her recantation and returned to her original version of the facts as she had given them. Appellant was convicted.
Appellant filed a motion for new trial, alleging his trial counsel was ineffective. Appellant did not call his trial counsel to the witness stand, and appellant's testimony was the only defense evidence presented to the trial court at the hearing on the motion. First Point of Error
In his first point of error, appellant contends the judgments should be modified to correct the name of the judge presiding at his trial. The State agrees with this contention. The reporter's record shows a visiting judge, James Fry, presided over the trial rather than Judge Mark Rusch as the judgments reflect. This Court has the power to correct a clerical error on a judgment to properly reflect what occurred in the trial court as shown by the record. See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529-31 (Tex. App.-Dallas 1991, pet. ref'd). Appellant's first point of error is sustained. We modify the judgments to show the Honorable James Fry was the trial judge who presided at trial.
Second Point of Error
In his second point of error, appellant complains of fourteen separate instances that his trial counsel was ineffective. He asserts the trial court abused its discretion by overruling his motion for new trial. The State responds the record contains no evidence of the reasoning behind trial counsel's actions or inactions and thus appellant has not met his burden of overcoming the strong presumption that counsel's representation fell within the wide range of reasonable professional assistance.
Applicable Law
To establish ineffective assistance of counsel, appellant must satisfy a two-pronged test to show by a preponderance of evidence that (1) his counsel's representation fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Davis v. State, 278S.W.3d 346, 352 (Tex. Crim. App. 2009).
A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Salinas, 163 S.W.3d at 740. To overcome the presumption of reasonable professional assistance , any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). In the absence of evidence to the contrary, a reviewing court presumes counsel's actions were part of a sound trial strategy. Strickland, 466 U.S. at 689.Generally, a writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
Application Of Law To Facts
The record in this case is undeveloped and does not adequately reflect the motives behind trial counsel's actions. At a hearing on appellant's motion for new trial, appellant presented two complaints regarding trial counsel's effectiveness. The trial court found against appellant on these two issues and overruled his motion.
In subpoints one through four, appellant complains of various times during the trial when allegedly objectionable evidence was presented by the prosecutor without objection by appellant's trial counsel. In his first claim, there was a plausible argument that the testimony in question did not even constitute hearsay, and even assuming that it did, there was a reasonable trial strategy for not objecting to its admission. See Strickland, 466 U.S. at 689.
In his second claim, appellant contends trial counsel should have objected to testimony by Plano Police Detective Jeff Rich about photographs that Rich had never seen. The photographs were described to him by the Mesquite Police Department, but Rich had no personal knowledge of the content of the photographs. However, the same photographs were later admitted into evidence for the jury to observe, so no harm could be shown under the second prong of Strickland. See Strickland, 466 U.S. at 694; Davis, 278S.W.3d at 352.
In his third claim, appellant complains about counsel's failure to object to hearsay testimony elicited from Rich pertaining to the complainant's recantation and subsequent issues with same. However, counsel later chose to introduce a videotape of the complainant that contained a statement by the complainant concerning these same issues. Without the testimony of appellant's trial counsel to explain, appellant has not shown by a preponderance of the evidence that allowing Rich's testimony without objection was not acceptable trial strategy. See Strickland, 466 U.S. at 689.
In his fourth claim, appellant contends trial counsel's failure to object to Rich's testimony concerning the credibility of the victim in a recantation situation constituted ineffective assistance of counsel. Normally such testimony would be inadmissible. See generally Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993). However, because it appears Rich's testimony related specifically to the issue of whether coaching had perhaps produced the complainant's recantation, his testimony did not constitute an opinion on the victim's credibility. See Schutz v. State, 957 S.W.2d 52, 73 (Tex. Crim. App. 1997); Reynolds v. State, 227 S.W.3d 355, 365 n.11 (Tex. App.-Texarkana 2007, no pet.). Because the issue was the existence of coaching, the question did not call for an objection concerning credibility. The first prong of Strickland is not met.
In his fifth claim, appellant contends trial counsel should have requested a rule 403 balancing test on evidence of extraneous acts of sexual misconduct appellant committed on the complainant-such evidence having been admitted through the complainant's testimony. See Tex. R. Evid. 403. However, appellant tendered this same evidence in the form of videotapes to show the jury the complainant's recantations. It is true that such a strategy was perhaps risky, to show both exculpatory and inculpatory versions of the complainant's statements, but it nevertheless was reasonable trial strategy to attempt to impeach the complainant's credibility. The first prong of Strickland was not met. See Strickland, 466 U.S. at 689.
In his sixth and seventh claims, appellant contends counsel failed to object to comments and testimony regarding extraneous sexual acts appellant committed on the complainant. But again, trial counsel made a decision to show videotapes to the jury that contained both inculpatory and exculpatory renditions of the facts by the complainant. This videotape evidence contained the same subject matter as the live testimony that is the subject of appellant's complaints. Given the paramount importance of the complainant's credibility in the trial, we cannot conclude appellant has shown trial counsel did not have a reasonable trial strategy for the acts at issue. See id.
In his eighth claim, appellant contends trial counsel was ineffective for failing to object when the prosecutor asked the complainant if she knew that her mother, on a day when she was due in court, checked her out of school and refused to bring her to court. There is no sound explanation in appellant's brief that would shed light on how this testimony harmed him under Strickland's second prong. Thus, appellant's eighth claim is without merit.
In his ninth claim, appellant contends trial counsel should have objected to testimony elicited by the State from Christy concerning appellant viewing pornography on the internet and his frequent masturbation. Appellant contends these were bad acts under rule 404(b) and thus inadmissible. See Tex. R. Evid. 404(b). However, the impeachment of the complainant with her recantation opened the door to the admission of evidence of appellant's intent. His intent was a contested issue in the case, so the introduction of non-character conforming evidence of lascivious acts by appellant while the complainant was present would go to show his criminal intent with regard to the acts alleged in the indictment. Appellant cannot satisfy the first prong of Strickland. See Ortiz v. State, 93 S.W.3d 79, 93-94 (Tex. Crim. App. 2002) (counsel is not ineffective for failing to object to admissible evidence). His ninth claim has no merit.
In his tenth claim, appellant contends his trial counsel should have objected to hearsay testimony elicited from Christy concerning appellant pushing and punching the complainant and asking the complainant if she had told Christy about acts appellant committed on the complainant. Evidence of this sort would have been admissible as an exception under rule 404(b) to show appellant's motive and/or intent with regard to acts committed on the complainant. See Tex. R. Evid. 404(b). Additionally, even if Rule 404 was violated, the harm to appellant would have been minimal, given the plethora of additional evidence that showed his motive and intent. Neither the first nor the second prong of Strickland has been proven. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983) (appellant is not entitled to errorless counsel). Appellant's tenth claim has no merit.
In his eleventh claim, appellant contends trial counsel erred in agreeing to the introduction of six videotapes containing interviews with the complainant. The complainant's recantations were contained in some of the tapes, so agreeing to the introduction of some of the tapes would have eventually brought into evidence all of the tapes under the rule of optional completeness. See Tex. R. Evid. 107. We cannot conclude trial counsel's decision to allow the videotapes was not a reasonable trial strategy because the victim's recantations were clearly the strongest exculpatory evidence in the case. See Strickland, 466 U.S. at 689.Appellant has not satisfied the first prong of Strickland. His eleventh claim is overruled.
In his twelfth claim, appellant contends trial counsel failed to request a gatekeeper hearing under rule 702 when the State tendered the testimony of forensic interviewer Jesse Gonzalez. See Tex. R. Evid. 702. Gonzalez testified she has a bachelor's degree in psychology and five-and-one- half years' experience interviewing victims of sexual abuse, including victims who were sexually "groomed" by their attacker over an extended period of time. Appellant has not shown in a motion for new trial or in this appeal that Gonzalez was not qualified to offer this testimony. There is ample evidence in this record that appellant had indeed attempted to groom the complainant for sexual purposes over a long period of time. Appellant has not met the first prong of Strickland and his twelfth claim is overruled.
In his thirteenth claim, appellant complains trial counsel refused to properly advise him with respect to whether he should opt for the judge or jury to assess punishment. Appellant did apply for probation from the jury. Thus, the record does reflect his understanding of the sentencing options available. See Tex. Code Crim. Proc. Ann. art. 42.12, §3g(a)(1)(E) (West Supp. 2011). There is nothing in the motion for new trial record other than appellant's testimony with regard to his choice of punishment options, and there is neither an affidavit nor testimony from trial counsel concerning advice, if any, given to appellant. Any further discussion of what trial counsel might have done or said would be purely speculative. The first prong of Strickland has not been met. See Mitchell, 68 S.W. 3d at 642. Appellant's thirteenth claim is overruled.
In his fourteenth and final claim, appellant alleges a litany of purported failures by trial counsel that allegedly occurred throughout the trial, including counsel's failure or refusal to take his diabetes medicine, resulting allegedly in counsel experiencing a diabetic episode. Appellant did not offer an affidavit or sworn testimony from trial counsel that would substantiate these claims. Bare references to the trial record without some substantiation or explanation does not meet the first prong of Strickland. Moreover, other than a bare conclusory statement in appellant's brief, there is no proof rising to the level of reasonable probability that but for any deficient performance, the result at trial would have been different. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (concluding an undeveloped record cannot provide the basis for an ineffectiveness claim). Appellant's fourteenth claim is overruled.
Having considered all of appellant's claims of ineffective assistance, we conclude none can satisfy both prongs of the Strickland standard. See Strickland, 466 U.S. at 687-88, 694. Accordingly, we overrule appellant's second point of error.
The judgments of the trial court are affirmed as modified.
CHARLES F. CAMPBELL
JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
100695F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BENJAMIN WAYNE BURDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00695-CR
Appeal from the 401st Judicial District Court of Collin County, Texas. (Tr.Ct.No. 401- 82045-07).
Opinion delivered by Justice Campbell, Chief Justice Wright and Justice FitzGerald participating.
Based on the Court's opinion of this date, the judgments of the trial court are MODIFIED as follows: The judgments are modified to reflect the trial court judge presiding at trial was James Fry.
As modified, the judgments are AFFIRMED.
Judgment entered April 24, 2012.
CHARLES F. CAMPBELL
JUSTICE, ASSIGNED