Opinion
01-22-00223-CR
08-10-2023
NICHOLAS EUGENE CAMPISE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 20-06-17321
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
MEMORANDUM OPINION
Terry Adams, Chief Justice
Appellant Nicholas Eugene Campise was convicted of the offense of aggravated sexual assault of a child. In one issue, Campise asserts that he received ineffective assistance of counsel. We affirm.
Tex. Penal Code § 22.021(a)(1)(B)(ii), (a)(2)(B).
Background
On March 14, 2019, when S.C. was five, she told her mother, Nicole Gillespie, that her father, Campise, sometimes made her "suck his turtle" when they were at his white house. When Gillespie asked S.C. what a turtle was, SC told her it was his private part. S.C. described the white house and stated that when her father made her suck his turtle, they were seated on the couch in the living room.
S.C. stated that when she sucked her father's turtle, "[a] lot of white stuff came out of it" and the white stuff went on her stomach. S.C. said that her father told her not to tell anyone about this and that it was supposed to be their secret. S.C. further stated that when she sucked her father's turtle it "went all the way back to [her] throat" and made her choke.
Gillespie reported S.C.'s outcry to police. S.C. was forensically interviewed by A. Diop, a forensic interviewer at Houston Children's Assessment Center (CAC), a few days after she reported the abuse to Gillespie. Diop explained that she was trained to watch for signs of coaching in these interviews, including "blanket statements that ha[d] no details behind [them,]" evidence that the child had "something to gain" from providing these statements, and statements that were exaggerated, such as that "everything ha[d] happened to them instead of just one specific thing ha[d] happened."
During the forensic interview, SC provided a description of the details of the abuse, including "bursts of narrative." Diop testified that S.C.'s description of the specific oral sex acts, which was not something a five-year-old should be aware of, indicated to Diop that this was "something that [S.C.] had experienced or been exposed to."
Detective B. Laredo, a detective with the Houston Police Department who is stationed with the Crimes Against Children Unit at the CAC, was assigned to the case. Detective Laredo discovered that the alleged incident had occurred in Waller County, so she referred the case to the Waller County Police Department and District Attorney's Office. After the case was forwarded to Waller County, Campise was arrested for the offense of aggravated sexual assault of a child.
Campise was convicted by a jury of aggravated sexual assault of a child and sentenced to 30 years in prison. Campise filed a motion for new trial but did not raise the issue of ineffective assistance of counsel. The motion for new trial was denied and this appeal followed.
Ineffective Assistance of Counsel
In his sole issue, Campise contends that the cumulative effect of certain errors in his defense counsel's performance supports the conclusion that the representation was deficient. We disagree.
Campise points to several alleged errors committed by his defense counsel that resulted in an overall deficient performance. Campise insists that this Court must look at counsel's performance as a whole and not consider whether each of the alleged errors, in isolation, amounts to ineffective assistance. While we agree that the ineffective-assistance analysis requires us to consider the totality of counsel's representation when determining whether counsel's performance was deficient, we disagree with Campise's assertion.
See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Rather, if none of the alleged actions alone constitutes error-then such non-errors taken together cannot "in their cumulative effect cause error." Accordingly, we address each alleged error in turn.
See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); see also Straight v. State, 515 S.W.3d 553, 576 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd) (concluding that cumulative effect of trial counsel's actions did not amount to ineffective assistance because trial counsel did not render ineffective assistance of counsel in complained of actions).
A. Standard of Review
The United States Constitution, Texas Constitution, and Texas Code of Criminal Procedure guarantee an accused the right to assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Pro. art. 1.051. As a matter of state and federal law, this right includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).
To prevail on a claim of ineffective assistance of counsel, an appellant must prove by a preponderance of the evidence that (1) counsel's performance fell below an objective standard of reasonableness and that (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). A failure to make a showing under either prong of the Strickland test defeats a claim for ineffective assistance. 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed."); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
Under Strickland's first prong, we must look to the totality of the representation to determine the effectiveness of counsel-indulging a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance and was motivated by sound trial strategy. 466 U.S. at 689; Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). We "must be highly deferential to trial counsel and avoid the deleterious effects of hindsight." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "The mere fact that another attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel." Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
Allegations of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813-14. In most cases, a direct appeal is an inadequate vehicle for raising an ineffective assistance claim because the record is undeveloped, and a silent record cannot adequately reflect the motives behind trial counsel's actions. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
When, as here, the record does not reveal the reasons for trial counsel's actions, we will "assume a strategic motivation if any can possibly be imagined." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Trial counsel should generally have an opportunity to explain his or her actions before we find the performance deficient. Goodspeed, 187 S.W.3d at 392. Without that opportunity, we should not find trial counsel's performance deficient "unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia, 57 S.W.3d at 440).
In rare cases in which counsel's ineffectiveness is apparent from the record, an appellate court may address the claim on direct appeal. Lopez, 343 S.W.3d at 143. But "the record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of his or her subjective reasoning." Id.
Under Strickland's second prong, we must determine whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. That an error had "some conceivable effect on the outcome" will not suffice. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010). Rather, there must be a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt with respect to guilt. Id.
B. Briefing Waiver
We first note that, like any other claim, an ineffective-assistance claim must be properly briefed to present the issue for appellate review. See Tex. R. App. P. 38.1. Thus, a party who fails to support an ineffective-assistance claim with supporting citations to authority waives the claim. See Nanez v. State, 346 S.W.3d 875, 876 (Tex. App.-Amarillo 2011, no pet.); Tufele v. State, 130 S.W.3d 267, 270-71 (Tex. App.-Houston [14th Dist.] 2004, no pet.).
See also Gutierrez v. State, No. 01-17-00734-CR, 2019 WL 5606627, at *7 (Tex. App.-Houston [1st Dist.] Oct. 31, 2019, no pet.) (mem. op., not designated for publication).
Campise raises several acts or omissions that he contends, when taken together, amount to ineffective assistance of counsel. For instance, he claims that defense counsel's relationship with the State Bar of Texas, which includes a prior disbarment and suspension, resulted in counsel displaying "no grasp of how to investigate a case, try a case, conduct legal research, or read the law." He also maintains that:
• Defense counsel withdrew his only pretrial motion, a motion that had no merit;
• Defense counsel objected to a juror's excusal, then later exercised a peremptory strike against her; and
• Defense counsel called two "crucial" defense witnesses, but they were unavailable.
However, Campise does not support these arguments with any legal authority, nor does he explain how counsel's acts or omissions constitute deficient performance or how he was harmed.
See Nanez, 346 S.W.3d at 876 ("[N]either appellant nor his appellate attorney provided us with statutory or case citation purporting, in any way, to illustrate that the particular conduct of which they complained was unreasonable or deficient. Omitting such authority alone permits us to deem the issues inadequately briefed and, therefore, waived.").
Campise also points to defense counsel's alleged acts and omissions relating to the admissibility of S.C.'s forensic interview and evidence relating to a prior accusation of sexual abuse against another individual as evidence that defense counsel provided ineffective assistance. Campise contends:
• Defense counsel made improper objections to the admissibility of S.C.'s forensic interview, and his questioning opened the door to the admissibility of that interview.
• Although defense counsel initially sought to introduce evidence of S.C.'s prior false allegation of sexual assault against another man, defense counsel abandoned his efforts to introduce this evidence and agreed with the trial court's exclusion.
• After the State accidentally allowed evidence of S.C.'s prior accusation before the jury, defense counsel did not cross-examine the forensic interviewer about S.C.'s accusation, nor did he re-urge the introduction of a video of S.C.'s prior accusation. Instead, defense counsel "sought to display [Campise's] penis."
• Defense counsel failed to introduce evidence that there were doubts as to the truthfulness of S.C.'s accusations against Campise.
Although Campise makes passing references to a few rules of evidence in connection with these arguments, he does not explain how or why any of the above evidence would have been admissible under those rules of evidence, how the exclusion of the evidence (or defense counsel's failure to pursue this evidence) was deficient (apart from the conclusory statements that it was), or how he was harmed.As a result, we must conclude that Campise has waived most of his ineffective assistance of counsel arguments due to serious and substantial inadequate briefing. See Nanez, 346 S.W.3d at 876; Tufele, 130 S.W.3d at 270-71.
See Tufele, 130 S.W.3d at 270-71 (finding appellant's ineffective assistance claims waived because "[a]ppellant cited no legal authority-other than passing references to a few Texas Rules of Evidence-to support his contention that the objections listed on pages nine through fourteen of his brief should have been made in this case").
See also Gutierrez, 2019 WL 5606627, at *7 (holding appellant's ineffective assistance claims waived for inadequate briefing because appellant failed to support complaints with legal authority, failed to explain why trial counsel's actions were deficient or how appellant was harmed by those actions).
But, even if these arguments were not waived, we still conclude, for the reasons detailed below, that, based on the record before us, Campise has failed to satisfy one or both of the Strickland prongs with respect to each of his arguments and, therefore, has failed to demonstrate that defense counsel's performance was constitutionally deficient.
C. Defense Counsel's Prior Disciplinary History with State Bar of Texas
Campise first directs this Court to his defense counsel's previous disbarment and suspension from the practice of law as evidence that defense counsel's representation was deficient. Campise notes that defense counsel appeared as counsel for Campise one month after his suspension ended.
In Cantu v. State, 930 S.W.2d 594 (Tex. Crim. App. 1996), the Texas Court of Criminal Appeals held that the suspension of trial counsel's law license before trial does not necessarily result in a per se denial of a defendant's Sixth Amendment right to effective assistance of counsel. Id. at 602. The court explained that "a never-been-licensed layman" could never be considered "counsel" under the Sixth Amendment and therefore representation by such a person would always constitute a complete denial of counsel. Id. For attorneys who were once validly licensed but have subsequently been suspended or disbarred, however, a case-by-case determination is warranted:
A suspended or disbarred attorney is incompetent as a matter of law if the reasons for the discipline imposed reflect so poorly upon the attorney's competence that it may reasonably be inferred that the attorney was incompetent to represent the defendant in the proceeding in question. It is possible that the reasons for discipline could be so egregious that the attorney would not be competent to represent any criminal defendant. Or, the reasons for discipline might in some way be relevant to the attorney's responsibilities in the proceedings in question so as to give rise to an inference that the attorney was incompetent to participate in those particular proceedings.Id.
The court then listed several factors relevant to determining whether an attorney is incompetent as a matter of law. Id. at 602-03. If an attorney is found incompetent as a matter of law, the court is not required to "inquire into attorney errors or prejudice." Id. at n.8; see also Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005).
These factors include: (1) the severity of the sanction (suspension versus disbarment; length of suspension), (2) the reasons for the discipline, (3) whether the discipline was based upon an isolated incident or a pattern of conduct, (4) similarities between the type of proceeding resulting in discipline and the type of proceeding in question, (5) similarities between kinds of conduct resulting in the attorney's discipline and any duties or responsibilities the attorney had in connection with the proceeding in question, (6) temporal proximity between the conduct for which the attorney was disciplined and the proceeding in question, and (7) the nature and extent of the attorney's professional experience and accomplishments. Cantu v. State, 930 S.W.2d 594, 602-03 (Tex. Crim. App. 1996).
Here, Campise makes no legal argument connecting defense counsel's prior disciplinary history with his actions at trial and includes no discussion of the factors relevant to determining whether counsel was incompetent as a matter of law. Further, as noted above, Campise acknowledges that defense counsel made an appearance for him in this case one month after the suspension had ended. And Campise's trial took place about a year and a half later. Thus, there is no dispute that defense counsel had a valid license at the time of trial.
Accordingly, Campise has failed to demonstrate that defense counsel's prior disciplinary history rendered him incompetent as a matter of law or that it amounted to ineffective assistance of counsel.
See, e.g., Henderson v. State, No. 14-11-00727-CR, 2012 WL 6218078, at *8 (Tex. App.-Houston [14th Dist.] Oct. 25, 2012, pet. ref'd) (mem. op., not designated for publication) (rejecting appellant's argument that defense counsel, who was suspended for one month, eight months before appellant's trial, was incompetent as matter of law and holding that because record reflected that appellant was represented by licensed counsel at all times, counsel's prior suspension did not meet first prong of Strickland).
D. Abandonment of Pretrial Motion
Campise next contends that defense counsel abandoned his only pretrial motion-a motion for an independent forensic interview of the child. Campise asserts that the motion lacked merit and underscored defense counsel's "lack of knowledge of clear, governing law." He then takes issue with defense counsel's alleged withdrawal of the purportedly meritless motion before receiving a ruling from the trial court on that motion.
Generally, defense counsel's failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy. See Martinez v. State, 449 S.W.3d 193, 208 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd). For the same reason, defense counsel's decision to pursue only certain pretrial motions, as opposed to others, may also be a strategic decision. Here, the record is silent as to defense counsel's strategy for pursuing this particular motion, whether ultimately meritorious or not, and not others. Thus, we must presume that counsel's performance was not deficient on this ground. See Lopez, 343 S.W.3d at 143.
See Mares v. State, 52 S.W.3d 886, 891 (Tex. App.-San Antonio 2001, pet. ref d) ("In this case, trial counsel filed numerous pre-trial motions but elected to pursue only a few at the hearing on pretrial motions. The decision not to pursue the remaining motions could have been part of trial counsel's trial strategy because rulings on the motions may not have assisted with the defense.").
See also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (in cases where record silent as to trial counsel's reasoning, appellate court should find ineffective assistance only if challenged conduct so outrageous that no competent attorney would have engaged in it).
Additionally, Campise's position is premised on his contention that the motion did not have merit, but he has pointed to no authority, nor are we aware of any, holding that defense counsel is deficient for filing a motion that is ultimately determined to be without merit. Unless appellant shows that the pretrial motion had merit and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (citing Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993)). To the extent Campise's argument can be construed as challenging defense counsel's filing of this single motion, and not others, Campise has failed to identify any other pretrial motion that had merit but was not filed or to argue that a ruling on those unidentified motions would have changed the outcome of the case.
Even if defense counsel's filing of an unmeritorious motion constituted a deficiency, Campise would not be able to prove the second prong of the Strickland test because he cannot prove, nor has he made any argument, that there is a reasonably probability the result of the proceeding would have been different had defense counsel not filed the motion. See Thompson, 9 S.W.3d at 812.
We likewise disagree that defense counsel was ineffective for "abandoning" this pretrial motion. The reporter's record reflects that defense counsel presented substantive arguments on this motion, and, although he acknowledged that he should have filed it earlier, the trial court ruled on the motion-denying it on the basis that the court lacked the inherent authority to provide the relief requested by the motion, that the request should have been made earlier, and that a third interview could cause unnecessary trauma to the child. Thus, despite Campise's assertions to the contrary, defense counsel did not abandon this pretrial motion but instead obtained a ruling from the trial court.
We therefore conclude that Campise has failed to satisfy either Strickland prong and thus has failed to demonstrate that defense counsel's actions with respect to the filing of this motion were constitutionally deficient. See Strickland, 466 U.S. at 697; Williams, 301 S.W.3d at 687.
E. Voir Dire
Campise next points to defense counsel's "inexplicable voir dire performance." He contends that defense counsel objected to the excusal of juror 29 and that his objection "kept her on the panel." Despite this objection to her removal, defense counsel later exercised a peremptory strike against juror 29. Campise contends there "can be no reasonable trial strategy in ensuring that a juror objectionable to the defense remain on the panel" and that this cost the defense "the loss of a peremptory strike [that] could have been used on some other objectionable juror."
During voir dire, the State questioned the venire about whether anyone knew someone who had been involved in a sexual assault case, asking: "Has anybody here been a victim themselves, know someone who is a victim, has close family or friends involved in a case of this nature? Okay . . . I see Juror Nos. 1, 2, 3, 4, 5, 6, 9, 10 . . . 16, 20, 22, 29, 43, 57, 58."
The State then asked whether anyone from that group felt that, based on this experience, they could not be fair and impartial.
[THE STATE]: . . . Without going into a lot of details, who here feels like their experience was so strong that they just do not feel like they can be fair and unbiased in this case? So I am looking at and I see No. 4, No. 16, No. 29 and No. 58; and you-all feel that your experience with a case of this nature was so strong that you just don't feel like you can be a fair juror in this case? I see the heads nodding.
Later, the State challenged these four jurors for cause, and defense counsel opposed the State's challenge as to all four, including juror 29. The trial court then called each juror up to question them further. Upon further questioning from the trial court and the State, juror 29 stated that she could be fair, not be biased against the State or defense, and base her verdict solely on the facts and evidence in the case.
The trial court noted that juror 29 was "quizzed pretty hard," and she said "that she can be fair in this instance." Defense counsel agreed that "she can be qualified as a juror." Although defense counsel agreed that juror 29 could be qualified as a juror, he later exercised a peremptory strike to exclude this juror from the panel.
Although juror 29 may have initially been subject to a challenge for cause, she indicated by her responses to further questioning that she could be fair and unbiased. Thus, the responses elicited from her during the further questioning above demonstrates that juror 29 was not required to be challenged (or excused) for cause. See, e.g., Tex. Code Crim. Proc. art. 35.16(a)(9) (providing that juror may be challenged for cause if she "has a bias or prejudice in favor of or against the defendant"). Furthermore, because Campise did not raise ineffective assistance of counsel in his motion for new trial, the record is silent as to defense counsel's strategy in determining whether to oppose the State's challenges for cause or how to use peremptory strikes, and we must presume that trial counsel's performance was not deficient on this ground. See Lopez, 343 S.W.3d at 143; Goodspeed, 187 S.W.3d at 392.
See also, e.g., Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009) ("The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law. Before a prospective juror may be excused for cause on this basis, the law must be explained to him, and he must be asked whether he can follow that law, regardless of his personal views.").
The Texas Court of Criminal Appeals has rejected two similar ineffective-assistance-of-counsel claims based on inadequate records. In Murphy v. State, the defendant's trial counsel used peremptory strikes against two venire members who counsel erroneously believed had been unsuccessfully challenged for cause. 112 S.W.3d 592, 600-01 (Tex. Crim. App. 2003).
The Court of Criminal Appeals explained that "[d]espite [trial] counsel's mistaken belief about the challenges for cause, he may have ultimately utilized peremptory challenges against [those venire members] for any number of legitimate reasons," leaving "at least the possibility" that his use of those peremptory strikes "was reasonable trial strategy." Id. at 601. (internal quotation omitted). Accordingly, the Murphy court held that it must defer to trial counsel's decision and denied the defendant relief on his ineffective assistance claim. Id.
In Goodspeed, the defendant's trial counsel did not ask any questions of the venire during voir dire and exercised two of his ten peremptory strikes on prospective jurors who had already been excused by the trial court. 187 S.W.3d at 392-94. The Court of Criminal Appeals noted that trial counsel had not been given the opportunity to respond to the ineffective-assistance-of-counsel claim, and thus, it could not conclude that his performance was deficient. Id. at 394 (also noting, even if trial counsel's use of peremptory strikes constituted deficient performance, defendant was still required to show "that they harmed him," which he had not done).
Here, defense counsel did not use a peremptory strike on a venireperson who had already been excused by the trial court. Rather, for reasons that are not contained in the record, defense counsel objected to the State's for cause challenge to juror 29, and then later decided to use a peremptory strike to remove juror 29 from the panel.
Consequently, following the reasoning of Goodspeed and Murphy, we hold that, based on this record, Campise has not established that defense counsel's performance fell below an objective standard of reasonableness in using a peremptory strike on juror 29, rather than agreeing to the State's request to have her struck for cause. See Goodspeed, 187 S.W.3d at 394; Murphy, 112 S.W.3d at 600-01.
We note that Campise has also not shown that he was harmed by the use of a peremptory strike on juror 29. Although he claims that this prevented him from using a peremptory strike on another objectional juror, he has not identified any particular juror that was objectional to the defense, but that ultimately served on the jury.
F. Failure to Call Crucial Defense Witnesses
Campise next contends that defense counsel was deficient in failing to call two witnesses that "were crucial to [Campise's] only defense," James Richards and Tracey Bellew. Campise contends that these two witnesses' "unfortunate and clearly unplanned absence from trial was due to [defense counsel's] incompetence." We disagree.
A review of the record shows that, despite Campise's assertions to the contrary, both witnesses testified for the defense. Richards was called out of order, before the State rested, because he was only available on one day to testify. Richards testified that he was Campise's current roommate, that Campise is "very truthful," that he was a "very attentive father," and that, "[w]ithout a doubt," he would be willing to leave his nieces and nephews in Campise's custody.
And although Bellew was not at the courthouse when she was first called, which resulted in Campise being called instead, she testified immediately after Campise. Bellew testified that she was best friends with Campise's mother and that she had known Campise since he was five years old. She testified that she had observed Campise around S.C. many times, that she did not believe Campise abused S.C., and that she would have no problem leaving her 11-year-old granddaughter with Campise.
Campise asserts that, because Bellew was not available when she was called, this "negligence . . . resulted in yet another ill-planned decision, i.e., immediately call[ing] [Campise], who was also apparently unprepared[,] . . . to the stand." Campise does not provide any further argument to support his contention that he was "unprepared" to testify at that time.
Considering that both witnesses testified as planned for the defense, we conclude that Campise has failed to meet his burden to show that defense counsel's actions fell outside the bounds of reasonable representation. See Strickland, 466 U.S. at 690; Williams, 301 S.W.3d at 687.
G. Objections to S.C.'s Forensic Interview
Campise next maintains that defense counsel's Confrontation Clause objections to the admission of S.C.'s forensic interview showed a fundamental misunderstanding of the law because the Confrontation Clause did not bar the admission of the forensic interview. Campise also asserts that the forensic interview was admissible because defense counsel's cross-examination of S.C. opened the door to allow the admission of the interview.
At the pretrial motions conference, the trial court did not rule on the admissibility of S.C.'s forensic interview, as the State argued that the question of admissibility would have to be determined by the trial court after hearing the testimony at trial. The State argued that the appropriate venue for addressing any inconsistencies in S.C.'s testimony would be during cross examination and stated that the State might attempt to introduce the forensic interview itself as a prior consistent statement "if there was any suggestion to the jury that the child had falsified the allegation or was being untruthful or lying about the abuse."
A prior statement may be admitted if it is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Tex. R. Evid. 801(e)(1)(B); Dibello v. State, 432 S.W.3d 913, 915 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd). A prior consistent statement need only be "generally consistent" with the declarant's testimony. Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007); Dibello, 432 S.W.3d at 915.
During S.C.'s testimony at trial, the State requested a short break. Defense counsel objected to S.C. continuing to testify following the break because defense counsel overheard a woman from the District Attorney's Office speaking with S.C. about her testimony during the break. Defense counsel alleged that the State was trying to "intimidate the child to cause the child to somehow change her testimony," and he objected to further testimony from S.C. for a violation of "the rule."
When the trial court invokes "the rule," it excludes witnesses from the courtroom pursuant to Rule 614, which provides in relevant part: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion." Tex. R. Evid. 614; see also Jimenez v. State, 307 S.W.3d 325, 334 (Tex. App.-San Antonio 2009, pet. ref'd) ("When the Rule is invoked, a witness should not hear testimony in the case or talk to any other person about the case without the court's permission.").
The trial court allowed defense counsel to question the person who spoke with S.C., identified as H. Rodriguez, who testified that she worked with the District Attorney's Office, that she was the victim's assistance coordinator, and that she did not discuss S.C.'s testimony with her. Rodriguez testified that prosecutors asked S.C. if she wanted to watch her forensic interview again but denied that the prosecutors "tried to really change anything" with respect to S.C.'s testimony. The trial court determined that Rodriguez had not violated any rule by speaking with S.C. but allowed defense counsel to cross-examine S.C. about what happened.
During cross-examination, defense counsel asked S.C. about her discussions with the State during the break, whether her testimony had changed after speaking with the State, and whether anyone from the District Attorney's Office had told her what to say during her testimony. S.C. stated that she spoke with Rodriguez and the prosecutors during the break and that they asked her to be more specific in her testimony, but that they did not tell her what to say.
Later, during Diop's testimony, the State attempted to introduce Diop's forensic interview of S.C. as a prior consistent statement. Defense counsel objected to its admission, arguing that S.C. was not under oath during the interview and that admission of the interview violated the Texas Rules of Evidence. The trial court reserved ruling on the objection and heard argument the following day.
The following day, defense counsel argued that the forensic interview was inadmissible because S.C. was not put under oath and was not cross-examined during the interview, as required by the Confrontation Clause. Defense counsel also argued that the forensic interview was not actually a prior consistent statement because S.C. described her father's turtle as "dark brown" in the interview, but pink during her trial testimony. The trial court ruled that S.C.'s forensic interview was admissible as a prior consistent statement and could be offered through Diop's testimony.
We note that S.C.'s forensic interview was admitted into evidence as State's Exhibit 1. While the video was being played to the jury, the State realized it had inadvertently offered and admitted an unredacted version of the forensic interview, which included statements about another individual, Reginald Allen, against whom S.C. had made allegations of sexual assault. As discussed in more detail below, the trial court did not permit the State to withdraw the unredacted forensic interview from evidence and instead allowed it to be played in its entirety before the jury.
Even assuming defense counsel's actions or omissions related to the admission of S.C.'s forensic interview fell below an objective standard of reasonableness, a question we do not decide, we conclude that Campise has not demonstrated that he was prejudiced by the admission of this video because S.C.'s statements were largely cumulative of her live testimony at trial. Indeed, Texas courts, including this court, have repeatedly held that testimony about, and recordings of, a child's statements concerning a sexual crime are harmless when other, unobjected-to evidence proves the same facts.
For instance, although the record is silent as to defense counsel's strategy, it is possible that defense counsel was attempting to discredit and cast doubt on S.C.'s testimony by questioning whether she was coached by the State during a break in her testimony. See Josey v. State, 97 S.W.3d 687, 696 (Tex. App.-Texarkana 2003, no pet.) (holding that cross-examination strategy that opened door to testimony about additional incidents of assault was not ineffective assistance; "[w]e cannot say attempting to discredit one or both of the State's primary witnesses is improper trial strategy or otherwise falls below the level of an objectively reasonable standard of conduct"); cf. Longoria v. State, No. 01-16-00689-CR, 2018 WL 327107, at *5 (Tex. App.-Houston [1st Dist.] Jan. 9, 2018, no pet.) (mem. op., not designated for publication) ("Proper trial strategy includes cross-examination with intent to discredit witnesses by pointing out inconsistencies."). Based on this record, Campise has failed to show that this questioning was improper trial strategy, even if it opened the door to otherwise inadmissible evidence.
See Strickland v. Washington, 466 U.S. 668, 697 (1984) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed."); Williams, 301 S.W.3d at 687.
Prince v. State, 574 S.W.3d 561, 574 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd) ("In situations where a video recording is improperly admitted, yet the recording is cumulative of the victim's properly admitted live testimony on the same issue, courts often disregard the error, reasoning that it could not have affected the appellant's substantial rights."); Lumsden v. State, 564 S.W.3d 858, 891 (Tex. App.-Fort Worth 2018, pet. ref'd).
Here, SC testified at trial that when she was five her father, Campise, made her "suck his private." She testified that she used to call a boy's private part a "turtle." S.C. also testified that when she was five, her father lived in a white house. She described the white house and stated that when her father made her suck his turtle, they were seated on the couch in the living room. S.C. testified that when she sucked her father's turtle, "[a] lot of white stuff came out of it" and the white stuff went on her stomach. S.C. testified that her father told her not to tell anyone about this and that it was supposed to be their secret. S.C. further testified that when she sucked her father's turtle it "went all the way back to [her] throat" and made her choke. S.C. made substantially similar statements during the forensic interview.
We therefore hold that S.C.'s statements made during her forensic interview were cumulative of her properly admitted testimony at trial and, therefore, the admission of the forensic interview was harmless. Accordingly, Campise cannot show that defense counsel's purported lack of appropriate objection to these statements, or his questioning that opened the door to admission of these statements, constituted ineffective assistance. See McNeil v. State, 452 S.W.3d 408, 419-20 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd).
See also Jensen v. State, 66 S.W.3d 528, 537 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (when statements in "videotape [are] cumulative of [complainant's] properly admitted testimony on the same issue, even if the trial court erred in admitting the videotape, we must disregard the error because it could not have affected appellant's substantial rights.").
H. Prior Accusation of Sexual Assault
Campise next contends that defense counsel's performance regarding a key defense issue, evidence of a prior false allegation of sexual abuse by S.C. against another individual, Reginald (Reggie) Allen, "was shockingly bad."
At trial, defense counsel attempted to introduce evidence that S.C. previously accused Gillespie's former boyfriend, Reggie Allen, of sexual assault, explaining:
[W]e will show that there was an additional outcry against another person, her mother's boyfriend; and this child gave an outcry concerning sexual abuse by that person whose name was Reggie Allen who was her mother's boyfriend who was living with her and [S.C.] at the time; and that's the purpose to show this is -- apparently, it was later recanted -- to show that there was another outcry of the same type before the alleged outcry concerning Mr. Campise.
Defense counsel made a bill of exception of S.C.'s testimony, wherein she testified that she told her mother and police that Allen put his finger in her bottom, but that was a lie. After argument from counsel, the trial court ruled that any evidence related to S.C.'s prior allegations were inadmissible.
S.C. was also forensically interviewed in connection with her allegations against Allen.
The following day, however, the trial court indicated that it was reconsidering its previous ruling related to S.C.'s prior allegation against Allen and heard additional arguments from counsel on this issue. After the State presented its argument, defense counsel stated that he agreed with the trial court's initial ruling excluding the evidence and withdrew the bill of exception:
THE COURT: I mean, you put on a Bill of Exception because you excepted to what I ruled on. I am telling you that I am reconsidering that ruling; and now, you are telling me that you want to go forward with the original ruling?
[DEFENSE COUNSEL]: I disagreed with the original ruling; but after I have reviewed some of these cases, I believe the Court was correct; and I am not going to ask for that.
The jury ultimately heard evidence related to S.C.'s prior accusation against Allen due to an error by the State. As noted above, the trial court ruled that S.C.'s forensic interview was admissible as a prior consistent statement. In this forensic interview, SC described an incident where Allen looked at her vagina, and that she did not want to tell anyone about it because she did not want Allen to go to jail. S.C. provided this statement in response to a specific question from Diop about whether something had ever happened with Allen.
In accordance with the trial court's ruling excluding evidence related to S.C.'s prior allegations against Allen, the State intended to redact this portion of State's Exhibit 1. However, the State inadvertently played an unredacted version of State's Exhibit 1, which contained these statements about Allen. Although the State attempted to substitute a redacted version of State's Exhibit 1, the trial court ruled that they were "going to go forward with this [unredacted] video" because it was offered by the State and admitted.
Campise maintains that defense counsel "did nothing to present significant evidence regarding this prior false accusation or his accuser's credibility, thereby affirmatively harming his own client." He also contends that defense counsel failed to question Diop about S.C.'s prior accusation against Allen after the unredacted State's Exhibit 1 was played for the jury, and he maintains that instead of eliciting any meaningful testimony regarding this prior accusation, defense counsel "sought to display [Campise's] penis." But despite arguing that defense counsel's actions resulted in the "exclusion of his best defense evidence," Campise makes no argument and conducts no analysis of whether this "best defense evidence," in the form of S.C.'s prior forensic interview or other testimony from her related to her prior allegations against Allen, would have been admissible.
Rather, Campise states only that defense counsel's initial basis for admission of this evidence, i.e., to attack the credibility of the witness, "might well have been meritorious, despite Rule 608(b) of the Texas Rules of Evidence." He then cites to one case, but does not argue how that case applies, and does not analyze Texas Rule of Evidence 608, the Confrontation Clause, or any other basis for exclusion or admission of this evidence. Nor does Campise cite any legal authority or conduct any legal analysis of how defense counsel's actions with respect to the handling of this evidence were deficient (apart from the conclusory statements that they were), or how he was harmed. See Nanez, 346 S.W.3d at 876; Tufele, 130 S.W.3d at 270- 71.
See Carroll v. State, 916 S.W.2d 494, 501 (Tex. Crim. App. 1996) ("[A]lthough we see no conflict between the right to cross-examine a witness . . . and Rule 608(b), if such a conflict existed, the constitutional right of confrontation would prevail.").
Instead, Campise has left it as an exercise for this Court to formulate a legal basis for his position that this evidence was admissible, and that defense counsel's performance was deficient. And that, of course, we cannot do. Without making any argument that this prior accusation evidence would have been admissible, Campise has seriously failed to carry his burden to demonstrate that defense counsel's actions with respect to this evidence fell below an objective standard of reasonableness.
Furthermore, the record is silent as to defense counsel's strategy behind his actions or inactions with respect to this prior accusation. The limited record on direct appeal reflects that, after the unredacted State's Exhibit 1 was played for the jury, defense counsel briefly questioned Diop about S.C.'s statements regarding Allen and elicited testimony from Campise related to S.C.'s accusation against Allen, her potential motivation behind this accusation, and the circumstances surrounding the accusation.
However, the record does not reflect defense counsel's reasons behind addressing the prior accusation in this manner, as opposed to pursuing another strategy, as Campise now contends defense counsel should have done. Because Campise's ineffective assistance claim is raised on direct appeal, defense counsel has not had an opportunity to respond to these areas of concern.
As the Court of Criminal Appeals has stated, the record on direct appeal will generally "not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard as the reasonableness of counsel's choices often involves facts that do not appear in the appellate record." Rylander, 101 S.W.3d at 110 (internal quotations omitted). Thus, an application for a writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Id.
In this case, the record is silent as to why defense counsel took or failed to take the actions he did with respect to the handling of the evidence of S.C.'s prior accusation against Allen. Therefore, based on the totality of this record, we cannot conclude that Campise has established that trial counsel's performance fell below an objective standard of reasonableness and, thereby, has satisfied the first prong of Strickland. See id.
In general, rejected claims made in a direct appeal are "not cognizable on habeas corpus." Ex parte Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App. 2004). However, that prohibition does not apply when an appellate court "rejects a claim of ineffective assistance of counsel because the record on direct appeal does not contain sufficient information to adequately address and resolve a particular allegation of counsel's deficient performance," and the claim may be considered "in a later habeas corpus proceeding if [the applicant] provides additional evidence to prove his claim." Id.; see also Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).
I. Failure to Introduce Evidence and Call Witnesses
Lastly, Campise maintains that defense counsel failed to present compelling evidence related to statements contained in a police report. Campise asserts that during the outcry hearing, defense counsel introduced a police report from the Seabrook Police Department, which included a report by Detective R. Ojeda.
The report reflects that Ojeda "spoke with the interviewer [Diop] after the CAC and it is undertermined [sic] if [S.C.] is being truthful. The interviewer suggested that I contact Fort Bend CAC and get a copy of the previous interview with [S.C.] and compare the two." Campise contends that defense counsel "made no effort to introduce any of these facts before the jury," including by calling Detective Ojeda or cross-examining Diop about these statements.
"Counsel's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony." King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Campise makes no argument that Detective Ojeda was available to testify or that her testimony would have been beneficial to him. Thus, he has not shown that defense counsel's failure to call Detective Ojeda amounted to ineffective assistance. Id.
Further, the record is silent as to defense counsel's strategy behind his cross-examination of Diop. Thus, we must presume that counsel's performance was not deficient on this ground. See Lopez, 343 S.W.3d at 143; see also Goodspeed, 187 S.W.3d at 392.
J. Cumulative Effect
As noted above, the crux of Campise's position in this appeal is that the cumulative effect of the above actions and inactions by defense counsel constitutes ineffective assistance of counsel. Having concluded that, based on the record before us, Campise has failed to meet his burden to show that by any of the above complained of actions alone, defense counsel's actions fell outside the bounds of reasonable representation, we likewise conclude that the cumulative effect of such actions does not amount to ineffective assistance of counsel under Texas law. See Straight, 515 S.W.3d at 576; see also Chamberlain, 998 S.W.2d at 238 (acknowledging that non-errors may not, in their cumulative effect, amount to error).
See Aguilar v. State, No. 01-15-00972-CR, 2017 WL 3634248, at *19 (Tex. App.-Houston [1st Dist.] Aug. 24, 2017, pet. ref'd) (mem. op., not designated for publication).
Accordingly, based on all of the reasons above and the record before us on direct appeal, we cannot conclude that Campise has established that he received ineffective assistance of counsel. We overrule Campise's sole issue and dismiss any pending motions as moot.
Conclusion
We affirm the trial court's judgment of conviction in all things.