Opinion
No. 05-16-00355-CR
11-02-2017
OSCAR EDGARDO FERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F-1476143-X
MEMORANDUM OPINION
Before Justices Lang, Evans, and Schenck
Opinion by Justice Schenck
Oscar Fernandez appeals his conviction for sexual assault of a child. In three issues, appellant contends the trial court erred in (1) denying his request for a mistrial, (2) in overruling his objection to the testimony of one of the State's witnesses, and (3) that he was not afforded effective assistance of counsel. We affirm the trial court's judgment. Because all issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
C.G. and her children lived with appellant for a short period of time in 2014. Around August of 2014, C.G.'s twelve year-old daughter J.G. began vomiting and experiencing abdominal pain. When the symptoms did not subside, C.G. took J.G. to the emergency room where staff discovered that J.G. was pregnant. Thereafter, J.G. underwent a sonogram, which revealed that she had a molar pregnancy. A molar pregnancy is one in which all of the genetic material comes from the sperm, and only an abnormal placenta develops. J.G. underwent a medical procedure to remove the placenta from her uterus. Because there is an elevated risk of cancer after a molar pregnancy, the hospital kept the removed tissue for testing. Detectives later obtained a search warrant for the tissue.
Forensic testing showed that the genetic profile of the tissue was consistent with appellant's DNA. The probability that appellant impregnated J.G. exceeded 99.99%. The probability of selecting a man at random and being able to exclude him as having impregnated J.G. also exceeded 99.99%.
A jury found appellant guilty of aggravated sexual assault of a child and sentenced him to eighty year's imprisonment and assessed a fine of $10,000.
DISCUSSION
I. Motion for mistrial
In his first issue, appellant claims the trial court abused its discretion in denying his motion for mistrial after C.G. testified that appellant had committed the extraneous offense of aggravated assault by pointing a gun at her. The complained of statement occurred during the following exchange between the prosecutor and C.G.
Q: So [appellant] moves in and he lives with you for how long?
A: About a year, a little over a year.
Q: And then what happened after that?
A: We had problems.
Q: Okay. Well
A: I asked him to move out.
Q: He moves out and then does he move back in?
A: No, he didn't. After he moved out, he broke in at gunpoint and - At that point, defense counsel objected under Texas Rule of Evidence 403, and commented that he had not been tendered any notice of an extraneous offense. The trial court sustained the objection. Defense counsel then requested a mistrial, which the trial court denied. The prosecutor then questioned C.G. outside the presence of the jury and established that C.G. had been instructed not to testify about the assaults or about a gun being pointed at her. The trial court then asked defense counsel if he wanted an instruction to be given to the jury. Defense counsel indicated he did, and the trial court instructed the jury to "disregard the last remark from the witness and not to consider it for any purpose, any extraneous offenses that may be alluded to now or at any time unless it's proper[ly] presented."
The record shows that on October 28, 2015, the State filed its Notice of Extraneous Offenses and served same on appellant's attorney. The notice advised that the State might introduce evidence that on or about July 1, 2014 appellant made an unlawful entry into C.G.'s residence and pointed a gun at her.
We review a trial court's denial of a motion for mistrial under an abuse-of-discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon. Woodring v. State, No. 05-06-00920-CR, 2007 WL 1064324, at *2 (Tex. App.—Dallas Apr. 11, 2007, pet. ref'd) (mem. op., not designated for publication) (citing Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2005, no pet.)).
To determine whether prejudicial testimony warrants a mistrial, we consider (1) the severity of the misconduct and magnitude of the prejudicial effect, (2) the curative measures taken, and (3) the certainty of conviction absent the misconduct. Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004).
The record shows that prior to testifying, C.G. had been instructed not to go into the assault at gunpoint. C.G.'s comment concerning the break-in and gunpoint were not elicited by the State. In fact, the statement was made in response to the prosecutor's question "[h]e moves out and then does he move back in?" The question asked for a "yes" or "no" answer and was properly calculated to elicit testimony as to when the alleged sexual assault could have occurred. The additional comment was non-responsive to the question asked and did not constitute misconduct on the part of the State.
The prejudicial effect of the statement, if any, was minimal. J.G. testified about appellant's abusive tendencies toward her mother, about how he threatened to hurt her family if she told anyone about the assault, and how his behavior caused her to take his threat seriously. Consequently, the jury was aware of the volatile nature of appellant's relationship with C.G.
The trial court took prompt curative measures by instructing the jury not to consider the testimony for any purpose. In general, a prompt instruction to disregard cures the prejudicial effect of inadvertent references to extraneous offenses. See Paster v. State, 701 S.W.2d 843, 848 (Tex. Crim. App. 1985) (an accomplice witness's inadvertent reference to extraneous murders was curable with an instruction to disregard). In fact, it is well-settled that testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (citing Gardner v. State, 730 S.W.2d 675, 696-97 (Tex. Crim. App. 1987); Davis v. State, 642 S.W.2d 510, 512 (Tex. Crim. App. 1982)). Here, C.G.'s comment about the break-in was not so inherently inflammatory as to be incapable of being cured by an instruction to disregard.
Furthermore, the evidence of appellant's guilt was overwhelming. J.G. testified that when she was close to twelve-years old she felt appellant's penis go into her vagina. In addition, the DNA evidence showed, almost to a certainty, that appellant was responsible for J.G.'s molar pregnancy.
After reviewing the record, we conclude the uninvited and incomplete reference to appellant's aggravated assault of C.G. was not so inflammatory as to undermine the efficacy of the trial court's instruction to disregard. See Kemp, 846 S.W.2d at 308. Furthermore, given the overwhelming evidence, appellant's conviction was certain. Thus, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule appellant's first issue.
II. Objection to Testimony
In his second issue, appellant claims the trial court abused its discretion in denying his objection to the testimony of Jennifer Spivey, a therapist who had treated J.G. More particularly, appellant argues (1) the State failed to disclose Spivey as a witness, and (2) Spivey testified as to matters outside the scope of her expertise.
After appellant objected to Spivey testifying during the guilt-innocence phase of trial on "the ground that [he had] not been provided discovery and [had] not had an opportunity to acquaint [himself] with what her testimony may be," the State elected not to call her during the guilt-innocence phase of the trial, and instead called her during the punishment phase only. Prior to Spivey testifying, the trial court conducted a hearing outside of the presence of the jury to determine whether Spivey was qualified to give expert opinions. The trial court ruled that Spivey could not give a diagnosis, but could state her observations.
Spivey testified that she observed J.G. had been actively self-harming by cutting her wrists, and that was something she had seen in her practice. When the prosecutor asked Spivey, "Why the cutting?" appellant objected on the ground that Spivey was not qualified to render an opinion. The trial court overruled this objection. Spivey then testified:
In my experience of working with clients, they have told that they self-harm as a way of being able to feel like they have control over something in their life, and they may not feel like they have control over other aspects of it. I've had children that told me it's a way of feeling a release of some of the pain that's inside them. Some people have told me that it is a way of being able to make sense of the things that are inside of them that they can't quite make sense of because it's the visual and physical connection they have with it.
A. Undisclosed Witness Complaint
To preserve a complaint concerning a trial court allowing an undisclosed witness to testify at trial, the appellant must object to the testimony on the ground of surprise and move for a continuance. See Youens v. State, 742 S.W.2d 855, 860 (Tex. App.—Beaumont 1987, pet. ref'd), citing Hubbard v. State, 496 S.W.2d 924, 926 (Tex. Crim. App. 1973). Prior to Spivey testifying during the punishment phase, appellant objected on the ground that she is not qualified to give an opinion. Appellant did not object on the ground of surprise, and did not move for a continuance in order to interview her or determine the matters about which she would testify. Having failed to do so, appellant "cannot now be heard to complain." Hubbard, 496 S.W.2d at 926. We overrule appellant's second issue as to his undisclosed witness complaint.
B. Unqualified Expert Opinion Complaint
We review a trial court's decision to admit or exclude expert testimony "under an abuse-of-discretion standard and will not be disturbed if it is within the zone of reasonable disagreement." Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017). The trial court's determination of an expert's qualifications requires a two-step inquiry: first, whether the witness has a sufficient background in a particular field; and second, whether that background goes to the matter on which the witness is to give an opinion. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010); Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). The important consideration is on the fit between the subject matter at issue and the expert's familiarity with it. Davis, 329 S.W.3d at 813; Vela, 209 S.W.3d at 133. Because the spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications as an expert on a specific topic in a particular case. Davis, 329 S.W.3d at 813.
Here, appellant only challenges Spivey's testimony as to the reasons people might give for harming themselves. In testifying to the reasons, appellant contends Spivey gave an unqualified expert opinion. We disagree. Spivey merely related the reasons some of her clients had given to her for why they "cut." The complained of testimony did not involve an expert opinion. See e.g., Franks v. State, 90 S.W.3d 771, 804 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Consequently, the trial court did not abuse its discretion in allowing Spivey to offer the challenged testimony. We overrule appellant's second issue as to Spivey's testimony concerning the reasons for cutting.
III. Ineffective Assistance of Counsel
In his third issue, appellant claims his counsel rendered ineffective assistance by (1) failing to file pretrial motions to restrict the admission of outcry testimony, (2) failing to file a pretrial motion for a hearing on the admissibility of extraneous offenses outside the presence of the jury, and (3) by failing to request findings and conclusions on the issue of extraneous offense evidence.
Texas courts apply the two-pronged Strickland test to determine whether counsel's representation was so inadequate as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland two-prong test). Under this two-part test, appellant must establish that: (1) counsel's performance was deficient and that his assistance fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not find counsel's representation ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
To satisfy the first prong, appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To prove the second prong, appellant must show that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Lopez, 343 S.W.3d at 142.
We ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy employed, we will presume that counsel was acting in accord with some deliberately sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
While appellant filed a motion for new trial, he did not raise ineffective assistance of counsel as a ground for new trial and there was no evidentiary hearing conducted in connection with that motion. Therefore, the record was not developed as to the reasons underlying counsel's conduct. See Thompson, 9 S.W.3d at 813. Thus, appellant has failed to overcome the strong presumption that counsel rendered effective assistance and satisfy the first prong of Strickland. See Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012); Kelley v. State, Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 WL 363751, at *2 (Tex. App.—Dallas Jan. 31, 2013, pet. ref'd) (mem. op.).
In addition, appellant does not demonstrate how the outcome of his case would have been different had his counsel filed various motions, objections, and requests; and thus, has failed to satisfy the second prong of Strickland. For all of these reasons, we resolve appellant's third issue against him.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 160355F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1476143-X.
Opinion delivered by Justice Schenck. Justices Lang and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 2nd day of November, 2017.