Dailey v. State

Full title: DON FITZGERALD DAILEY, Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Oct 4, 2005

Nos. 05-05-00226-CR, 05-05-00227-CR (Tex. App. Oct. 4, 2005)

Opinion

Nos. 05-05-00226-CR, 05-05-00227-CR

Opinion issued October 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 199-80226-04 199-80318-04. Affirmed.

Before Chief Justice THOMAS and Justices LANG and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

MEMORANDUM OPINION

Opinion By Justice LAGARDE.

Appellant Don Fitzgerald Dailey appeals his convictions for sex offenses against two complainants. In cause number 05-05-00226-CR, appellant was indicted for three counts of aggravated sexual assault of a child² and five counts of indecency with a child by contact. In cause number 05-05-00227-CR, appellant was indicted for one count of indecency with a child by exposure, involving a second complainant. Appellant pleaded not guilty to all counts and was tried before a jury. At the conclusion of the evidence, the State abandoned one count of indecency and the trial court granted a directed verdict of not guilty on three counts of indecency in cause number 05-05-00226-CR. The jury convicted appellant of two counts of aggravated sexual assault of a child in cause number 05-05-00226-CR,³ and assessed punishment at life and seventy-five years' imprisonment, respectively. The jury convicted appellant of one count of indecency with a child by exposure in cause number 05-05-00227-CR and assessed his punishment at five years' confinement. On appeal, appellant asserts his trial counsel was ineffective by not objecting to certain evidence at trial when the State had not laid the proper predicate for its admission. Appellant claims his attorney's omissions prejudiced him by depriving him of a fair trial and waiving error on appeal. For reasons that follow, we affirm the trial court's judgments.

2 In count one, appellant was charged with aggravated sexual assault of a child in two separate paragraphs, one alleging penetration and one alleging contact. The jury found appellant guilty of aggravated sexual assault of a child by penetration.

3 The jury found appellant not guilty of the aggravated sexual assault alleged in Count III and the indecency with a child alleged in Count IV in cause number 05-05-226-CR.

Background

The record reflects that D.F, the complainant in the indecency case, was a friend of J.H., the complainant in the aggravated sexual assault cases. J.H. was appellant's stepdaughter. One morning, when D.F. was visiting in appellant's home, appellant exposed himself to her while he was making pancakes for breakfast. Initially, D.F. only told J.H. about the incident. Appellant frightened D.F. when he told her and J.H., "[Y]ou don't tell people what I do." Eventually, however, D.F. told her mother what appellant had done because D.F. "couldn't keep it a secret anymore." Regarding the aggravated sexual assault cases, the record reflects that appellant married J.H.'s mother, Pattie Dailey, when J.H. was five years old. At first, appellant treated J.H. as any normal stepfather would treat his stepdaughter, although differently than he treated her two older brothers. Appellant then began sexually abusing J.H.J.H. did not tell anyone about the abuse because appellant threatened to kill Pattie in her sleep if J.H. ever told anyone. Although Pattie did not know about the abuse, for unrelated reasons, she eventually asked appellant to move out of the house. In the process of the move, J.H. was sent to stay with a neighbor while Pattie had a garage sale. During this visit, J.H. told the neighbor that appellant had abused her. J.H. did not, however, tell the neighbor the details of the abuse. The neighbor told Pattie, who was "shocked and tearful" when she heard about the appellant's sexual abuse of J.H.J.H. would not talk to Pattie about the abuse. The next day, Pattie took J.H. to the police and an investigation was begun, the first step of which was a referral to the Collin County Child Advocacy Center. There, J.H. was interviewed by Katherine Jenkines. For the first time, J.H. revealed the details of the sexual abuse to Jenkines, sometimes through the use of drawings to express what appellant had done to her. One instance of sexual abuse included appellant tying J.H. to the bed while he sexually penetrated her. At trial, Jenkines testified to those details and identified the various drawings done by J.H. This testimony and these exhibits, which were admitted into evidence at trial without objection, form the basis of appellant's complaints on appeal. After Jenkines interviewed J.H., she was examined by a nurse, Carol Goldberg, who conducted a three-part sexual examination. That examination included a verbal history, a head-to-toe examination for trauma, and a detailed genital examination. Thereafter, Sergeant Gerald Burks of the Collin County Sheriff's Office obtained an arrest warrant for appellant and a search warrant for his residence. During the search of appellant's residence, Burks found a picture of D.F., J.H., and other young girls inside a DVD case for a pornographic movie that was in a box containing pornographic magazines. Burks also found special occasion cards addressed to "Daddy" and signed by J.H.

Standard of Review

To prevail on a claim of ineffective assistance of counsel on appeal, appellant must show both that trial counsel's performance was deficient, and that the deficient performance prejudiced his defense rendering the trial unfair and the verdict suspect. Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellate courts indulge a strong presumption that counsel was competent, i.e., that the challenged action might be considered sound trial strategy. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). To defeat this presumption, "any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. To show counsel's performance was deficient, appellant has the burden to show there is no plausible professional reason for counsel's specific act or omission. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). The court of criminal appeals has stated that 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" because "[t]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record." Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). A writ of habeas corpus is usually the more appropriate vehicle to raise ineffective assistance of counsel claims. See id. Recently the court of criminal appeals reiterated the effect of an insufficient record on appeal, stating:

[d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. 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. We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was" so outrageous that no competent attorney would have engaged in it."

Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at * 2 (Tex.Crim.App. Apr. 6, 2005) (citations omitted); see also Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). But see Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005) (reversing conviction "in a rare case" for ineffective assistance of counsel on trial record alone, concluding it presented court with sufficient information to decide case where defense counsel failed to object to prosecutor's misstatement of the law on sentencing during punishment closing argument).

Analysis

Appellant complains his trial counsel was ineffective in not objecting to certain hearsay statements by D.F. and J.H. because the State had not laid the proper predicate for establishing that Jenkines was the outcry witness.⁴ Appellant further claims he was prejudiced by trial counsel's omissions because they deprived him of a fair trial and resulted in a waiver of his rights on appeal. Appellant argues that the fact the jury assessed punishment in the cases at life, seventy-five years, and five years in prison, when he was eligible for community supervision, is "objective proof" the hearsay evidence prejudiced him. Appellant contends that, but for trial counsel's omissions, the result of his trial would have been different.⁵ The State responds that appellant has not presented a record sufficient to overcome the strong presumption that he received effective assistance of counsel at trial or to show that counsel's failure to object was not trial strategy. Moreover, the State argues, even if trial counsel's representation was deficient, appellant has not shown the result would have been different. J.H. was ten years old at the time of appellant's trial. She testified to the details of the sexual abuse she suffered from appellant over a four-year period. She further testified to appellant's callousness and indifference to the physical pain he caused, including one incident when he put his hand over her mouth and said, "[S]hut up, moron," when she began to scream. D.F., who was nine at the time of trial, testified to the details of appellant's exposing himself to her, and how she felt scared by his statement that she could not tell what he did. Additionally, evidence was presented at the punishment phase that appellant had sexually abused two of his nieces, L.W. and A.W.A.W. also testified that she witnessed one incident in which appellant was sexually assaulting J.H. We have carefully reviewed the trial court record before us in these cases. We agree with the State that the record presented does not overcome either the strong presumption of effective representation or that trial counsel's actions were based in sound trial strategy. See Delrio v. State, 840 S.W.2d 443, 447 (Tex.Crim.App. 1992) (consistent with Strickland, court presumes counsel was in a better position than the appellate court to judge the pragmatism of the case and that counsel made all significant decisions in the exercise of reasonable professional judgment). We further conclude that appellant has not shown the resulting punishment would have been different. We resolve appellant's issues against him. We affirm the trial court's judgments.