Opinion
NUMBER 13-17-00332-CR
08-16-2018
TYLER JOSEPH CLARK, Appellant, v. STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of Aransas County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Tyler Joseph Clark appeals his conviction of aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2017 1st C.S.). By one issue, he argues that he received ineffective assistance of counsel. We affirm.
I. BACKGROUND
On January 19, 2017, appellant was indicted for aggravated sexual assault of a child, a first-degree felony. See id. A three-day trial was held, during which lab reports confirming the presence of appellant's DNA in the victim's vagina were presented. The victim identified appellant and testified that he had given her pills and money before the assault. Appellant admitted to the sexual assault in his testimony. The jury found appellant guilty. Appellant elected to have the jury assess punishment, and the jury sentenced him to sixty years' imprisonment in the Texas Department of Criminal Justice—Institutional Division.
On July 14, 2017, appellant filed a motion for a new trial, alleging ineffective assistance of counsel. Specifically, Clark complained about his trial counsel's: (1) failure to strike a juror; (2) "lack of harmony" with Clark; (3) failure to object to extraneous matters during the punishment phase; (4) failure to make a final argument at the punishment phase; (5) and failure to adequately prepare and present mitigating evidence at the punishment phase of trial. A hearing on the motion was heard on August 8, 2017, where counsel appeared and testified as to the reasons behind his choices. Clark's trial counsel testified that he did not strike the juror in question because he trusted Clark's judgment and Clark wanted to use his strike on another individual. His trial counsel further testified that as a general strategy he tries not to object to evidence that he thinks will be admitted because otherwise it only draws extra attention to the evidence. The trial court denied Clark's motion for new trial. Clark timely filed notice of appeal. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, appellant contends that he did not receive effective assistance of counsel at trial. In order to sustain a claim of ineffective assistance of counsel, an appellant must show that (1) appellant's attorney's representation fell below an objective standard of reasonableness, and (2) but for the counsel's errors, the result of the proceeding may have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Any allegations of insufficiency of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the inconsistencies. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
A. Unreasonable Representation
1. Applicable Law
Review of counsel's representation is highly deferential and subject to a presumption of reasonable assistance. See Strickland, 466 U.S. at 689. When the record is silent on the motivation behind counsel's decisions, an appellant usually cannot overcome this presumption. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Thus, direct appeal is usually an inadequate tool for claims of ineffective assistance because the record has not been developed sufficiently to make such findings. See Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). To warrant reversal without giving counsel an opportunity to outline the reasons for their omission, the challenged conduct must be "so outrageous that no competent attorney would have engaged in it." Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007).
2. Analysis
None of appellant's complaints except for complaint (b), failure to strike a venire member who worked in the jail, were raised at appellant's motion for new trial. As a result, counsel has not had an opportunity to respond to these complaints. See id.
As to complaint (a)—that counsel failed to file pretrial motions including requests for 404(b) material, requests for the State to identify its experts, and requests for discovery of Brady and Morton material—failure to file pretrial motions does not categorically constitute ineffective assistance. Martin v. State, 265 S.W.3d 435, 442 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Appellant's counsel may have already had informal notice of the information that could have been obtained through these motions, and formal notice may not have benefitted appellant's defense. There is nothing in the record to indicate that Clark would have learned anything new by filing these motions.
As to complaint (c)—failure to object to extraneous guilt evidence—failure to object is not inherently an error. See Cueva v. State, 339 S.W.3d 839, 849 (Tex. App.—Corpus Christi 2011, pet. denied). Appellant must show that the trial court would have erred in overruling the objection to show ineffective assistance for a failure to object. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). Appellant contends that failure to object to the victim's testimony that appellant gave her pills and money was ineffective assistance. However, this testimony was relevant to appellant's intent to entice the victim. See TEX. R. EVID. ANN. 404(b)(2) (West, Westlaw through 2017 1st C.S.) (character evidence is admissible to show intent). Overruling an objection to this testimony would not necessarily have been an error. See White, 160 S.W.3d at 53. Appellant also contends that counsel was ineffective by failing to object to the prosecution's questions to appellant about his criminal past. However, because appellant had made a blanket reference to this past during cross-examination by his counsel and opened the door to questions, any objection to these questions would have been overruled. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007); White, 160 S.W.3d at 53.
As to complaint (d)—failure to object to certain documents containing hearsay—this can only be error if the trial court would have erred in overruling an objection, had it been made. See White, 160 S.W.3d at 53. Clark asserts that his trial counsel should have objected to documents that included inadmissible hearsay, such as certain laboratory reports and the search warrant for Clark's DNA. Because this information was already introduced in the form of testimony, the trial court could have properly overruled any objections to the admission of the documents. See Nicholas v. State, 502 S.W.2d 169, 174 (Tex. Crim. App. 1973) (holding that "the improper admission of evidence over objection is rendered harmless by the unobjected-to admission of other evidence of substantially the same facts"); Lopez v. State, 288 S.W.3d 148, 168 (Tex. App.—Corpus Christi 2009, pet. ref'd) (same).
As to complaint (e)—failure to object to testimony by a witness of the victim's demeanor and failure to object to that witness's credentials—not all testimony regarding someone else's mental state or demeanor must be excluded. See Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997) (en banc). Therefore, overruling an objection to this testimony is not necessarily error. See White, 160 S.W.3d at 53. Moreover, this witness had also already given her credentials as a mental health counselor at a juvenile center; refraining from challenging her credentials may have been a strategic choice to avoid antagonizing the jury. See Easley v. State, 978 S.W.2d 244, 251 (Tex. App.—Texarkana 1998, pet. denied).
As to complaint (f)—failure to properly cross-examine the witnesses by declining to ask questions on certain issues and revealing information beneficial to the State through questioning—questioning a witness may be a strategic decision even if it reveals information advantageous to the State. See Madrigal Rodriguez v. State, 749 S.W.2d 576, 581 (Tex. App.—Corpus Christi 1988, pet. denied). Counsel's decisions regarding when and when not to ask questions are subject to the presumption of effective assistance. See Strickland, 466 U.S. at 689. Clark argues that it was a mistake, for example, to question the complainant about her age; he argues that this was beneficial to the State. However, it could have been a reasonable trial strategy to be honest about the facts of the case or to simply beat the State in revealing information that was readily available through alternate means. See id.
As to complaint (g)—failure to make an opening statement at guilt-innocence—waiving the opportunity to make an opening statement can be a strategic decision because it would give the State a preview of the defense's arguments. Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.—Fort Worth 1996, no writ).
As to complaint (h)—failure to object to allowing two witnesses to testify via closed-circuit cameras—this is not a clear error because it is not clear if the trial court would have erred if it overruled an objection to this testimony. See White, 160 S.W.3d at 53. Child witnesses may be allowed to testify via closed circuit cameras without statutory authority when there is an adequate showing of necessity. Marx v. State, 987 S.W.2d 577, 580 (Tex. Crim. App. 1999) (en banc). Because the State may have been able to demonstrate adequate necessity, overruling an objection to this testimony would not necessarily be an error. See White, 160 S.W.3d at 53. Counsel may also have chosen not to object as a strategic choice to lessen the impact of the testimony of these witnesses. More importantly, Clark and his attorney both represented to the trial court that it was acceptable to them that the witnesses testify via closed-circuit cameras.
As to complaint (i)—failure to move for a directed verdict based on lack of evidence identifying Clark as the offender—the victim clearly identified appellant as the person who assaulted her. Moving for a directed verdict would have been futile. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (en banc).
As to complaint (j)—failure to adequately prepare appellant to testify—appellant made the decision to testify against the advice of his counsel. Counsel prepared appellant to testify as effectively as he could by advising him not to testify, but his trial counsel had no authority to prevent Clark from testifying. Because the decision to testify is appellant's personal right, it is not an error on his counsel's part. Sapata v. State, 574 S.W.2d 770, 771 (Tex. Crim. App. 1978 [panel op.]).
As to complaint (k), failure to request a limiting instruction, this is not by itself ineffective assistance. See Straight v. State, 515 S.W.3d 553, 573 (Tex. App.—Houston [14th Dist.], pet. ref'd). Deciding not to request a limiting instruction may be a strategic decision to not bring more attention to the issue. This decision is not "so outrageous that no competent attorney would have engaged in it." See Roberts, 220 S.W.3d at 533-34.
As to complaint (l), general failure to represent appellant at guilt-innocence and punishment, appellant has failed to concisely identify an error by his counsel that resulted in ineffective assistance. See TEX. R. APP. P. 38.
Therefore, we find none of the foregoing conduct "so outrageous that no competent attorney would have engaged in it." See Roberts, 220 S.W.3d at 533-34. The only complaint to which counsel has had a chance to respond is complaint (b), failure to strike a venire member who worked at the jail. At the hearing for appellant's motion for a new trial, counsel explained that he did not strike this juror because appellant had requested that she be on the jury. Clark wanted to use their strike on another juror. Because his trial counsel was not familiar with the community and made a strategic decision based on his client's superior knowledge of the community, this choice is not an error resulting in ineffective assistance. See Strickland, 466 U.S. at 689. We conclude that appellant has not demonstrated that his representation by counsel was objectively unreasonable. See id. at 688.
B. Prejudice Against Defendant
1. Applicable Law
To show that the errors prejudiced his defense, appellant must show a reasonable probability that the proceeding would have been different but for the errors. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc). Whether there is a reasonable probability depends on the evidence at trial, and a strongly supported verdict is less likely to have been affected by errors. See Ex parte Bryant, 448 S.W.3d 29, 40 (Tex. Crim. App. 2014).
2. Analysis
The evidence in support of appellant's conviction is strong. At trial, appellant admitted to having sex with the victim, against the advice of his counsel. The victim identified appellant as the person that assaulted her, and appellant's DNA was found in the victim's vagina. It is unlikely that error by his counsel could affect his likelihood of conviction in light of this decisive evidence. As to his sentence, he received a sentence of sixty years, which is in the middle of the range for aggravated sexual assault for a repeat felony offender. Even if the choices indicated by appellant were indeed errors resulting in ineffective assistance, it is unlikely that these errors would have affected this result. See Strickland, 466 U.S. at 694. Appellant has not demonstrated that he was prejudiced by the alleged errors. See id. We overrule appellant's sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 16th day of August, 2018.