No. 05-04-00074-CR
Opinion issued April 20, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F95-76425-HU. Reversed and Remanded.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
MORRIS, Justice.
Having been granted an out-of-time appeal by the Texas Court of Criminal Appeals, Mark Adrian Glasgow now complains he received ineffective assistance of counsel at trial and the evidence against him was legally and factually insufficient to support his conviction. We conclude the evidence against appellant was legally sufficient. Nevertheless, because we conclude trial counsel provided ineffective assistance, we reverse the trial court's judgment and remand the cause for further proceedings.
Factual Background
Appellant waived his right to a jury trial and proceeded to trial before the court for the offense of sexual assault of a child. At appellant's trial, his stepdaughter testified that when she was fifteen years old, she told a school counselor appellant had engaged in sexual intercourse with her and had molested her for years. But the stepdaughter testified that she had lied to the counselor about appellant because she was upset with him for grounding her. Approximately one month after she had told the counselor appellant sexually assaulted her, the stepdaughter admitted to her mother that the story was not true. Afterward, she also denied the story was true to a prosecutor. The stepdaughter admitted that she went to a support group at her school for a few weeks after she told the counselor appellant had sexually assaulted her. She decided to stop attending the group because the counselor persistently asked her if she was going to testify against appellant. The stepdaughter also testified that she told a girlfriend appellant had sexually assaulted her before she told the school counselor. She stated that she loved her stepfather and wanted him to come back and live with her and her mother. She admitted being afraid that appellant would get into trouble if she persisted in reporting the sexual assault. Appellant's wife, and the girl's mother, testified that she initially could not understand how the particular sexual assault her daughter reported to the school counselor could have occurred on the specific night her daughter claimed. The mother testified that she was sick from bronchitis that night and awoke several times all night long, always finding appellant still in bed with her. The mother testified that her daughter had already confessed to her that the story was not true before she started attending the school's support group. The mother claimed she allowed her daughter to participate in the school support group simply because the girl had always had low grades in school and needed help with her work. According to the mother, appellant was the person who normally disciplined her daughter. The mother testified that she believed her daughter's claim of sexual abuse initially but also believed her later recantation. The mother testified that she did not think appellant ever molested her daughter. Next, the stepdaughter's school counselor testified, without objection, that the stepdaughter told her about the sexual assault. She said appellant's stepdaughter was weeping and shaking when they talked. She believed the girl was sincere. The counselor claimed appellant's stepdaughter told her appellant had been touching her inappropriately from the time she was six years old and began having intercourse with her when she was approximately twelve. She told the counselor that she had just engaged in sexual intercourse with appellant the previous night. The counselor did not believe the girl was pretending that the events happened. In the counselor's opinion, fifteen-year-old girls do not lie about sexual abuse. According to the counselor, the stepdaughter later told her she was concerned that her mother had been forced to take on a second job because of what she had said about appellant. During the guilt-innocence portion of his trial, appellant took the stand. He claimed he had never molested or sexually assaulted his stepdaughter. He confirmed that he had grounded the stepdaughter before she told the counselor he had sexually assaulted her. On cross-examination, appellant admitted having a discussion with a police detective a short while after his arrest. He denied telling the detective he went into his stepdaughter's bedroom the night of the offense, took off some of her clothing, and played with her "in areas that count" — meaning the stepdaughter's breasts and vagina. He denied telling the detective his penis only touched the outside of the girl's vagina. He confirmed, however, telling the detective that he did not want to sign a statement. He claimed their discussion was merely his repetition of the allegations the detective read to him. He claimed he simply repeated what she said to him without admitting anything. On rebuttal, the State called the detective who had questioned appellant. According to the detective, appellant waived his Miranda rights and told her he had gone into his stepdaughter's room, woken her, removed some of her clothing, and begun to "play with the areas that count." When the detective asked appellant what he meant, he stated that he meant the girl's breasts and vagina. Appellant, the detective claimed, told her his penis had touched the outside of his stepdaughter's vagina but had not gone in completely. When appellant refused to write out his statement and said that he wanted a lawyer, the detective terminated the interview. The detective also testified that she interviewed the stepdaughter before appellant's arrest. According to the detective, the stepdaughter was upset and crying during the interview. The trial court found appellant guilty of sexual assault of a child. At argument on punishment, defense counsel twice requested that the trial court give appellant probation, though he was not eligible for probation. On both occasions, the trial judge had to inform the defense attorney that appellant could not get probation in his case. The trial court sentenced appellant to twenty years' confinement. After the time had passed for appellant to file an appeal, he filed an application for writ of habeas corpus with two supplements. A hearing before a magistrate was held on the writ application. The relief requested in the writ was ultimately granted, with the court of criminal appeals ordering that appellant was entitled to an out-of-time appeal. Afterward, appellant requested that this Court supplement the appellate record with the record from the writ hearing. The State did not respond to appellant's request, and this Court supplemented the appellate record with the court reporter's record from the writ hearing. At that hearing, the stepdaughter, who was then twenty-two years old, persisted in her claim that she had lied when she said appellant had sexually assaulted her. She testified that, although appellant was no longer married to her mother, she still considered him her father because he was "the only one that's been around." Also at the writ hearing, appellant's mother claimed his trial attorney told him he thought appellant would probably get probation in the case. Appellant testified his trial attorney told him the only way he could get probation in the case was to admit he had committed the sexual assault. Appellant claimed that was why he ultimately admitted committing sexual assault against his stepdaughter. Appellant also claimed the trial attorney told him, even before he hired him, that probation would be the outcome of his case. The trial judge questioned appellant about his decision to testify during the guilt-innocence phase of trial. Appellant claimed his trial counsel did not tell him "anything" about otherwise inadmissible evidence becoming admissible if he chose to testify. Appellant claimed that if he had been informed the evidence of his reported oral confession made to the detective would be admissible if he testified, he would have chosen not to testify. An affidavit signed by appellant's trial attorney was also admitted into evidence at the writ hearing. The affidavit appears to be trial counsel's response to the original writ application and an affidavit in which appellant stated that he was not informed of his right to appeal. In his affidavit, appellant's trial counsel claimed he did not provide ineffective assistance to appellant. He claimed he never promised appellant he would receive probation. The attorney stated that he advised his client to admit his guilt at punishment after he had been found guilty by the court. Counsel noted in his affidavit that appellant had admitted to a detective before trial that he had sex with the stepdaughter. The attorney alleged he did not tell appellant "to admit to the offense during guilt/innocence" because such advice would have been ridiculous in light of appellant's plea of not guilty. Counsel admitted, however, that appellant's conviction was based on more than the school counselor's testimony because the stepdaughter had testified and appellant "had given a statement prior to trial admitting that he had a few beers, and had sex with her because she wanted it." In addition, appellant's attorney stated in his affidavit that he could not recall whether he had objected to the school counselor's testimony, but he was "sure that the testimony would have been allowed under these circumstances, as it would be an exception to the hearsay rule." The attorney claimed appellant had previously filed a writ application on February 9, 2001, in which he "alleged the same complaints as this one." Discussion
We take up appellant's sixth point of error first. In his sixth point of error, appellant complains the trial court erred in not granting his motion for directed verdict because the evidence against him at trial was legally insufficient. Appellant filed his motion for directed verdict after the State rested — before he testified at the guilt-innocence phase of trial and before the State rebutted his testimony with the detective's testimony showing he had previously admitted committing the offense. A complaint about the trial judge's ruling on a motion for an instructed verdict is "in actuality a challenge to the sufficiency of the evidence to support the conviction." Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990). We examine all the evidence presented at trial by both the State and the defendant to determine whether the evidence was legally sufficient to sustain the conviction, not whether the evidence was legally sufficient at a particular time during the trial. See id. at 686 n. 3. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All evidence admitted at trial, both properly and improperly admitted, is considered in a legal sufficiency review. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). Appellant argues that two of the three witnesses who testified in the State's case-in-chief swore that the crime did not occur. It is true that the stepdaughter recanted her original sexual assault claim at trial. She nevertheless admitted that she at one time made such a claim, not only to the school counselor but first to a friend. Although her mother no longer believed the claim, she too once believed appellant had sexually assaulted the girl. In addition, the school counselor confirmed that the stepdaughter told her appellant had sexually assaulted her. In the school counselor's opinion, the stepdaughter's accusation was sincere. Furthermore, before appellant was convicted, the detective testified without objection that appellant admitted to sexually assaulting his stepdaughter. Viewing all the admitted evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction. We therefore overrule appellant's sixth point of error. We now address appellant's ineffective assistance claims. In his first five points of error, appellant claims he received ineffective assistance of counsel at trial. He specifically contends the following: counsel failed to object to the school counselor's hearsay testimony; counsel advised appellant to testify during the guilt-innocence phase of trial without warning him that his previous statement would become admissible; counsel failed to object to the sufficiency of the evidence used to corroborate his reported oral confession; counsel advised appellant he would receive probation or deferred adjudication if he admitted committing the crime at punishment; and counsel failed to investigate thoroughly the facts of the case and interview witnesses. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We must look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When the record is silent about the motivation of counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, Nos. PD-0993-03, PD-0994-03, PD-0995-03, PD-0996-03, 2005 WL 658979 at *2 (Tex.Crim.App. Mar. 23, 2005). In most cases, the record on direct appeal is insufficient to adequately reflect the failings of trial counsel and defeat the presumption of reasonable professional assistance. See Thompson, 9 S.W.3d at 813-14 (Tex.Crim.App. 1999). In this case, however, the appellate record includes a response by trial counsel to most of appellant's allegations. Moreover, some of counsel's actions in this case could not possibly have been engaged in by an attorney offering effective assistance. We will begin addressing appellant's ineffective assistance claims by reviewing his fifth point of error and then review points of error one through four. In his fifth point of error, appellant contends trial counsel was ineffective because he failed to thoroughly investigate the case and interview "key witnesses and potential witnesses." Specifically, appellant complains trial counsel never interviewed his stepdaughter or his wife. The record from appellant's trial shows counsel himself had never spoken to either person. In addition, appellant complains counsel did not interview the friend his stepdaughter originally told about the sexual assault or the school counselor. Appellant further complains counsel failed to require the stepdaughter to undergo a medical examination to show that she was still a virgin before trial. This Court has previously held that a trial court has no authority to order a sexual assault complainant to submit to a physical examination. State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144 (Tex.App.-Dallas 1987, orig. proceeding). And the record does not show that the stepdaughter was ever willing to submit to such an examination voluntarily. Therefore, appellant's argument on this matter is without merit, and he has failed to meet the first prong of Strickland. Next, we note that appellant did not raise the issue of failure to interview witnesses in his application for writ of habeas corpus. Accordingly, it does not appear that counsel had an opportunity to respond to these allegations in his affidavit. We do not know why counsel failed to interview these witnesses or if he possibly had someone else interview the witnesses for him. Accordingly, with respect to his claims that counsel failed to interview witnesses, we conclude appellant has again failed to meet the first prong of the Strickland test. See Mallet, 65 S.W.3d at 63. We overrule appellant's fifth point of error. We now address appellant's first four points of error together under the first prong of Strickland then proceed to address the second prong. In his first point of error, appellant complains counsel failed to object to the hearsay testimony of his stepdaughter's school counselor. The State concedes that the testimony was not admissible as "outcry" evidence under article 38.072 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2004-05). At trial, and apparently before, the stepdaughter recanted her accusation that appellant had sexually assaulted her. Appellant's wife testified that she no longer believed the accusation. We cannot imagine a trial strategy that would incorporate permitting the school counselor to testify without objection about appellant sexually assaulting the stepdaughter. Moreover, it is clear from the record that trial counsel believed — even years after appellant's conviction — that the testimony was admissible as "an exception to the hearsay rule." Counsel failed to object to testimony by the only witness in the State's case-in-chief who persisted in a belief that appellant had sexually assaulted his stepdaughter. We cannot imagine how such inaction could be attributed to a viable trial strategy. In his second point of error, appellant complains trial counsel failed to advise him about the consequences of testifying during the guilt-innocence phase of trial. Appellant claimed at his habeas hearing that he would not have testified had he known his testifying would allow the State to put on evidence of his unrecorded statement to the police detective. The State contends that appellant does not point to any evidence in the record affirmatively reflecting that trial counsel failed to advise him that, if he testified, the previous statement could be used against him. The record does show, however, that trial counsel in fact was aware before trial of the detective's claim that appellant had made an incriminating statement. Trial counsel stated in his affidavit, "It makes no sense that I would set a matter for trial and then tell Mr. Glasgow to admit to the offense during guilt/innocence." Counsel offered no other explanation for appellant's decision to testify at the guilt-innocence phase of trial. He did not contend appellant insisted on testifying in defiance of his advice. See Hubbard v. State, 770 S.W.2d 31, 43 (Tex.App.-Dallas 1989, pet. ref'd) (holding a defendant who rejects his attorney's advice on whether to testify preempts his attorney's trial strategy and may not complain of ineffective assistance on appeal). It appears that counsel's affidavit was given in response to the allegations made by appellant in his original application for writ of habeas corpus. In that application, appellant specifically alleged counsel failed to warn him of the consequences of testifying during the guilt-innocence phase. When an appellant alleges his trial counsel provided ineffective assistance, counsel "should ordinarily be accorded an opportunity to explain [his] actions before being condemned as unprofessional and incompetent." Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). In this unusual case, trial counsel was accorded such an opportunity but failed to explain his actions. The record before us shows trial counsel was aware that appellant had previously given an incriminating statement as reported by the police detective. Despite this fact, counsel permitted his client to testify, thus providing the State with the opportunity to impeach appellant with his previous statement. When the State proceeded to offer testimony about appellant's previous statement, trial counsel did not object on the basis of hearsay or attempt to limit the trial court's consideration of the testimony as impeachment of appellant's credibility only, rather than as evidence of his guilt as well. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon Supp. 1979). As hearsay testimony admitted without objection, the testimony could be considered by the trier of fact for its probative value. See Tex. R. Evid. 802. This testimony was the most probative evidence of appellant's guilt offered at trial. Therefore, once again, we cannot imagine a trial strategy of advising appellant to testify at the guilt-innocence phase of trial or of failing to advise appellant of the risks of testifying before the trial court found him guilty or not guilty. In a related complaint, appellant contends in his third point of error that counsel was ineffective for failing to object to the sufficiency of the evidence used to corroborate the statement he allegedly made to the detective. Under the corpus delicti rule, the State must corroborate a defendant's extra-judicial confession with some evidence outside of the extra-judicial confession that, considered alone or in connection with the confession, shows that the crime actually occurred. Salazar v. State, 86 S.W.3d 640, 645(Tex.Crim.App. 2002). The State argues in response to appellant's contention that the trial court, as trier of fact "presumably properly viewed Detective Garibay's testimony only as nonsubstantive impeachment evidence" and therefore the statement did not have to be corroborated. But this presumption, that the trial court as fact finder did not consider inadmissible evidence, has been expressly eliminated by the court of criminal appeals. See Johnson v. State, 871 S.W.2d 820, 823 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd) (citing Gipson v. State, 844 S.W.2d 738 (Tex.Crim.App. 1992)). Trial counsel did not respond to this allegation in his affidavit, although the complaint first appeared in appellant's writ application. It appears from the record that, due to trial counsel's failure to act, appellant's oral statement was admitted at trial for all purposes. The statement was corroborated by the fact that the stepdaughter had, at one time, claimed to a friend, a school counselor, and her mother that appellant had sexually assaulted her. The counselor believed the stepdaughter. The mother also believed her for some brief period of time. We have already determined that this evidence was legally sufficient to support appellant's convictions. We therefore conclude that failing to object to the lack of corroboration for the oral statement was among the least of trial counsel's errors. Appellant next complains in his fourth point of error that trial counsel erred by advising him to admit he was guilty after he was convicted because that was the only way he could get probation in the case. Appellant testified at the habeas hearing that he admitted he was guilty to the trial court and to a probation officer because counsel had informed him he would get probation if he did so. Trial counsel responded by affidavit that it is his practice not to promise probation, or any outcome, in a case without a plea bargain agreement in place. Counsel alleged that a retainer agreement signed by appellant "outlines that no guarantees or outcomes have been promised by attorney." Counsel did admit advising appellant to admit his guilt to the trial court during sentencing because appellant had already admitted his guilt to the detective before trial. Despite trial counsel's claim that he never "promised" a certain outcome in his case, the record demonstrates counsel erroneously pursued a punishment of probation in appellant's case when no such punishment was available. He filed an application for community supervision with the trial court and twice discussed probation at the punishment phase of appellant's trial. After being told a second time by the trial judge that appellant was not eligible for probation, counsel remarked, "I thought you said just deferred, Your Honor." Appellant was not eligible for deferred-adjudication probation because he entered a plea of not guilty. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2004-05). Once he was convicted of sexual assault of a child, the trial court could not sentence him to regular probation either. See id. art. 42.12, § 3g(1)(H). Trial counsel contested appellant's claim that he assured him he would receive probation in the case. But the fact that counsel was completely unaware — as late as the punishment phase of appellant's trial — that probation was not a viable punishment option for appellant if he pursued a plea of not guilty before the court indicates he had not adequately prepared appellant's case. Perhaps if trial counsel had correctly explained the status of the law to appellant, he would have chosen to pursue deferred-adjudication probation by entering a guilty or nolo contendere plea with the trial court or instead chosen to have a jury assess his punishment rather than the trial judge, in hopes that a jury would sentence him in such a way that would permit probation. Appellant never got the chance to make such a choice because his counsel was uninformed about the law. Regardless of whether counsel's strategy of having appellant admit his guilt at punishment was a good trial tactic, his pursuit of probation in the case demonstrated his deficient performance. Overall, appellant has shown that his trial counsel's performance fell below an objective standard of reasonableness. When we can conceive of potential reasonable trial strategies that counsel could have been pursuing, we cannot conclude that counsel has performed deficiently. See Andrews, Nos. PD-0993-03, PD-0994-03, PD-0995-03, PD-0996-03, 2005 WL at * 3. But that "is not the situation that we are dealing with in this case." Id. Counsel pursued a punishment option that was not available to appellant. In a sexual assault case where the teenage child recanted, trial counsel failed to object to hearsay testimony that did not qualify as outcry evidence and also allowed his client to testify, knowing (or not knowing) that doing so would permit the State to introduce evidence of appellant's previous incriminating oral statement. Failing to object to the previous statement in any way, counsel allowed the testimony to come in as evidence of appellant's guilt, rather than as only impeachment evidence to appellant's testimony. The sum of these errors cannot be considered reasonably effective assistance of counsel. Under the "extremely unusual circumstances of this case, the record contains all the information that we need" to conclude trial counsel's performance fell below an objective standard of reasonableness. Id. We therefore move to the second prong of Strickland to determine whether counsel's errors complained of in points of error one through four affected the outcome of appellant's trial. If counsel had acted differently, it is likely the only evidence supporting appellant's conviction would have been the stepdaughter's testimony that she originally accused appellant but then admitted her accusation was not true, supported by the mother's testimony that she only briefly believed her daughter's claims. If counsel had acted differently, it is likely the trial court could not have considered appellant's oral confession in deciding his guilt. If counsel had acted differently, appellant could have chosen to pursue a trial strategy that would have provided him with the possibility of probation in some form. Viewed in their totality, trial counsel's errors are too great not to have impacted the outcome of appellant's trial. A reasonable probability exists that, but for them, the result of appellant's trial would have been different. We therefore conclude appellant has also met the second prong of Strickland in demonstrating the ineffective assistance of his trial counsel. In this rare case, the record on direct appeal is sufficient for us to conclude that counsel's performance was deficient and that appellant was prejudiced by counsel's deficient performance. See Andrews, Nos. PD-0993-03, PD-0994-03, PD-0995-03, PD-0996-03, 2005 WL 658979 at *4. We sustain appellant's first four points of error. Due to our disposition of these points of error, we need not address the factual sufficiency complaint raised in appellant's seventh point of error. We reverse the trial court's judgment and remand the cause for further proceedings.