Charley v. State

Full title: PAUL EDISON CHARLEY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 8, 2011

No. 05-08-01691-CR (Tex. App. Feb. 8, 2011)

Opinion

No. 05-08-01691-CR

Opinion issued February 8, 2011. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 1 Dallas County, Texas, Trial Court Cause No. F08-33267-H.

Before Justices MORRIS, FRANCIS, and MURPHY.

MEMORANDUM OPINION

Opinion By Justice FRANCIS.

A jury convicted Paul Edison Charley of the aggravated sexual assault of his daughter and assessed punishment at fifteen years in prison. In six issues, appellant raises complaints regarding the admission of evidence, the trial court's failure to conduct a competency hearing, and ineffective assistance of counsel. We affirm. Appellant does not challenge the sufficiency of the evidence to support his conviction, so we will only briefly recount the evidence. M.C. testified appellant sexually abused her repeatedly over a period of seven years beginning when she was seven years old. The abuse involved appellant rubbing her breasts and penetrating her sexual organ with his finger. When she was ten years old, M.C. reported the abuse to her mother, who wanted to send her away. The abuse ended when an anonymous caller made a report to a middle school counselor, who then talked to M.C. and notified the police. Appellant was arrested, and after being given his Miranda warnings, confessed during a two-hour interview with Irving police Detective Steven Lee. The interview was recorded and played for the jury. During the interview, appellant admitted that on multiple occasions, he penetrated his daughter's vagina with his finger, "licked" her vagina, and rubbed her breasts. He also discussed specific incidents. Appellant told Detective Lee he did not do anything wrong and did not feel any guilt because M.C. was his daughter. He explained that he was from Micronesia and his actions were considered "normal" there. Appellant also told Detective Lee his wife knew about his conduct with M.C. At trial, appellant testified it was appropriate in his culture to touch the private parts of his children as long as it was not in a "sexual" way. When he "played" with M.C. and touched her body, "like say put my hands on top of her vagina," it was not sexual. Appellant told jurors he had been "playing" with M.C. since she was four. Although he admitted touching M.C., he denied penetrating her vagina with his finger and said he only told Lee he did because he was nervous. Appellant also said as long as M.C. was his "little girl," he could "touch her anywhere but not sexually." That "kind of playing" would stop when M.C. got older, he said, but at fourteen he considered M.C. his "little girl." In his first issue, appellant contends the trial court erred in allowing Detective Lee to testify, over a relevancy objection, that M.C.'s mother (appellant's wife) was culpable in the abuse. M.C. was interviewed at the Family Advocacy Center. Detective Lee observed the interview and then spoke with M.C.'s mother, who he said did not seem surprised by the information. The following colloquy occurred:

[PROSECUTOR]: After speaking with [M.C.'s mother], I guess, that would be about your third time to speak with her?

[DETECTIVE LEE]: Yes, ma'am.

[PROSECUTOR]: Did you make a decision about her culpability?

[DEFENSE COUNSEL]: Objection. Relevancy.

[TRIAL COURT]: Overruled.

[DETECTIVE LEE]: I did.

[PROSECUTOR]: Did you decide to charge her with a crime?

[DETECTIVE LEE]: Yes, ma'am, I did.

[PROSECUTOR]: What was that crime?

[DETECTIVE LEE]: Endangering a child.

Appellant argues Lee's statements to the jury about his decision to charge M.C.'s mother "was nothing more than an opinion that she was guilty, along with [a]ppellant, in the abuse." He argues the opinion was not relevant to any disputed fact issue. The record, however, shows that appellant's only objection was to the question about whether Detective Lee had made a decision; he did not object to Detective Lee's testimony regarding what that decision was. Because appellant did not object to the specific testimony that he complains about on appeal, we conclude this issue is waived. See Tex. R. App. P. 33.1. Even if we assumed the complaint was preserved and the evidence was improperly admitted, appellant cannot show the admission of the evidence affected his substantial rights. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). After considering the record in this case, we have a fair assurance that the admission of this evidence had little, if any, impact on the jury, given M.C.'s testimony, appellant's confession to Detective Lee, and appellant's testimony at trial. We overrule the first issue. In his second issue, appellant contends the trial court erred in failing sua sponte to hold an inquiry to his competency to stand trial. A person is incompetent to stand trial if the person does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006). A judge must inquire into a defendant's mental competence once the issue is sufficiently raised. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). The initial inquiry is informal and is required when evidence suggesting incompetency comes to the trial court's attention and creates a bona fide doubt in the judge's mind as to whether the defendant is incompetent. See Tex. Code Crim. Proc. Ann. art. 46B.004(b), (c); Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). A bona fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent history of severe mental illness or at least moderate mental retardation. Id. We review a trial court's decision not to conduct an informal competency inquiry for an abuse of discretion. Id. at 426. Appellant contends evidence of his incompetency was raised by (1) his voicing his dissatisfaction with his court-appointed lawyer on the first day of trial and wanting to hire new counsel, (2) his decision to testify at trial against the advice of counsel, (3) his characterization of his sexual misconduct as only "playing" and part of an ethnic culture that he did not believe was wrong, and (4) evidence that he was diagnosed with post-traumatic stress disorder while in the U.S. Army. The State first argues appellant did not preserve this issue because he failed to raise it during proceedings in the trial court. Regardless of whether a defendant complains he is incompetent, a trial court has an obligation sua sponte to hold an informal inquiry into competency if the evidence raises a bona fide doubt about the defendant's competency. See Tex. Code Crim. Proc. Ann. art. 46B.004(b), (c); see also Montoya, 291 S.W.3d at 424-25. Consequently, we cannot agree that appellant waived his complaint by failing to affirmatively assert it below. Turning to the merits, we conclude the evidence does not raise a bona fide doubt as to appellant's competency. No evidence suggests moderate retardation, and no evidence from any source suggests that appellant's PTSD, diagnosed while he was in the U.S. Army, was severe. That appellant gave what he described as "devastating" testimony also does not suggest incompetency any more than the fact that he did so against counsel's advice. Appellant testified at length and was articulate and focused in his testimony. He clearly understood the charges against him. He wanted to deny the admission made to Detective Lee regarding penetration of his daughter's vagina with his finger and wanted to provide a justification for his other actions-that his conduct was acceptable in his homeland. The trial court was able to make a first-hand assessment of appellant over the course of a three-day trial and was in a position to observe appellant's level of understanding of the proceedings and his ability to consult with his lawyer. Considering the record, no evidence suggests appellant did not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. We conclude the trial court did not abuse its discretion in failing sua sponte to conduct an inquiry into appellant's competency to stand trial. We overrule the second issue. In his third, fourth, fifth, and sixth issues, appellant argues he was denied effective assistance of counsel. Ineffective assistance of counsel claims are evaluated under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). A Strickland claim must be "firmly founded in the record" and the "record must affirmatively demonstrate" the meritorious nature of the claim. Id. For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance claims. Id. This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record. Id. Trial counsel should ordinarily be afforded an opportunity to explain her actions before being denounced as ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. Trial counsel's failure to object to admissible evidence does not constitute ineffective assistance of counsel. See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). In his last four issues, appellant contends counsel was ineffective for (1) failing to urge appellant's mental incompetence, (2) failing to object to testimony by the forensic interviewer at the Dallas Children's Advocacy Center, (3) failing to object to portions of the videotaped confession in which Detective Lee indicated he did not believe appellant's story, and (4) failing to object to the testimony of a probation officer that sex offenders can never be cured and have a higher recidivism rate than other offenders. Regarding competency, we have previously concluded that nothing in the record raised a bona fide doubt as to appellant's competency. Consequently, appellant has not shown counsel's performance was deficient for failing to raise this claim below. We overrule the third issue. In the fourth issue, appellant argues counsel was ineffective for failing to object to the testimony of Dora Martinez, who interviewed M.C. at the advocacy center after she outcried. Appellant contends Martinez's testimony was the "functional equivalent of expressing her belief in the veracity" of M.C. and was therefore inadmissible. The record shows Martinez testified about her training and experience, the format she generally used in conducting interviews with children, and what she looked for during the interview. She said it is suspicious when a child gives a lot of "I don't know" answers or, particularly if he is younger, wants to ask his mom or dad. She looks for sensory details, because if a child has been coached, he or she most likely would not be able to tell how something felt, tasted, or looked. Martinez stated she interviewed M.C., that M.C. made an outcry of abuse, and that M.C. was able to provide sensory details. She did not testify about any of the details of the abuse, nor was she asked whether she believed M.C. was telling the truth. Because jurors must decide the credibility of the witnesses, expert opinions on the truthfulness of a child complainant's allegation or class of persons the complainant belongs to, are prohibited. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). An expert may testify that the witness exhibits symptoms consistent with sexual abuse, but not that the witness is truthful. See Cohn v. State, 849 S.W.2d 817, 818-19 (Tex. Crim. App. 1993). Also, a trial court may admit expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused. Reyes v. State, 274 S.W.3d 724, 729 (Tex. App.-San Antonio 2008, pet. ref'd). Further, testimony that in an expert witness's opinion, the child does not exhibit indications of coaching does not constitute an opinion on the child's ultimate truthfulness. See Reynolds v. State, 227 S.W.3d 355, 365 (Tex. App.-Texarkana 2007, no pet.); see also Schutz, 957 S.W.2d at 73. Here, Martinez was not asked whether — and she did not testify that — M.C. was telling the truth. She did testify that M.C. was able to provide sensory details, which she earlier had said were "very important" because if a child is coached, they will not be able to give such details. Such evidence did not constitute an improper opinion on the child's ultimate truthfulness and was not objectionable on that basis. See Reynolds, 227 S.W.3d at 365; Schutz, 957 S.W.2d at 73. Consequently, trial counsel was not ineffective for failing to object to it for that reason. We overrule the fourth issue. In his fifth issue, appellant complains counsel did not object to statements made by Detective Lee during his interview of appellant. He asserts Detective Lee's statements that he did not believe appellant and was calling "BS on him" amounted to improper opinion evidence of appellant's credibility. Initially, the record shows the trial court allowed only portions of the videotaped interview to be shown to the jury. The DVD recording that we have on appeal appears to be the full interview; consequently, we have no way of knowing whether the complained-of portions were shown to the jury. But even assuming they were, appellant has not cited us to a single case in which a police officer's investigative tactics during an interrogation were considered improper opinion testimony at trial. Because appellant has not shown the evidence was inadmissible, he has not shown counsel was deficient. We overrule the fifth issue. In his sixth issue, appellant asserts trial counsel was deficient for failing to object to the testimony of probation officer Melissa Sellers. Sellers's testimony came during the punishment phase. The prosecutor asked, "Ms. Sellers, people who commit sexual offenses against children can never be cured; is that right?" Sellers answered, "That's correct." Later, the prosecutor asked, "Are you aware of the re-offense rate of [sex offenders]?" Sellers responded, "I don't know the — I know it's higher but I don't know the numbers." Assuming Sellers's testimony was improper, the record is insufficient to meet the Strickland standard. Appellant filed a motion for new trial, but he did not raise ineffective assistance of counsel. Consequently, the trial court has not had the opportunity to hold a hearing in which counsel is given the opportunity to explain his trial strategy, which could be construed as reasonable given the record in this case. Because the record is not sufficient to show counsel's representation was so deficient as to meet the first prong of Strickland, we overrule appellant's sixth issue. We affirm the trial court's judgment.