Hamilton v. State

Full title: ANTWON BERNARD HAMILTON, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Apr 2, 2003

No. 05-02-00451-CR (Tex. App. Apr. 2, 2003)

Opinion

No. 05-02-00451-CR.

Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80420-99. Affirmed as Modified.

Before Justices JAMES, BRIDGES, and RICHTER.

OPINION

Opinion By Justice RICHTER

A jury convicted Antwon Bernard Hamilton of aggravated sexual assault. After appellant pleaded true to two enhancement paragraphs, the trial court assessed the maximum punishment — life in prison and a $10,000 fine. In fifteen issues on appeal, appellant contends: (a) the evidence is legally and factually insufficient to support the conviction; (b) the court erred in denying his request for a jury instruction on a lesser included offense, in denying his request for new counsel, and in admitting extraneous offense evidence; (c) his counsel was ineffective; and (d) his sentence constitutes cruel and unusual punishment. We affirm.

Background

The indictment charged appellant with four alternative means of committing the assault: (1) causing the victim's female sexual organ to contact appellant's mouth, (2) penetration of the victim's mouth by means of appellant's male sexual organ, (3) penetration of the victim's female sexual organ by means of appellant's male sexual organ, and (4) penetration of the victim's female sexual organ by means of defendant's finger. See Tex. Pen. Code Ann. § 22.021(a)(1)(A) (Vernon 2003). In each instance, the indictment alleged the aggravating factor to be a threat of death, serious bodily injury, and kidnaping. See id. § 22.021(a)(2)(A)(iii). The State's first witness at trial was the victim. She testified she was out on a morning walk when appellant, who had jogged passed her twice, stopped in front of her and told her in a "very authoritative and very sharp" tone of voice to go with him towards a dumpster at a nearby school. The victim immediately threw her hands up and informed appellant she was pregnant and had no money on her. Appellant replied he had a gun and again told her to go with him. Appellant then grabbed the victim's arm, forcefully led her to the dumpster, undressed her, pushed her up against the dumpster, glanced at two pornographic magazines he had with him, and "started oral sex." According to the victim, appellant penetrated her vagina with his mouth and tongue and then his penis. When appellant failed to get an erection, appellant attempted a different position, but was interrupted by a garbage truck approaching to empty the dumpster. Appellant and the victim got dressed, and then appellant led the victim to a nearby bench, where he smoked what appeared to be crack or marijuana for about four minutes. From there, appellant led the victim through a softball field to a public restroom, where he undressed her and penetrated her vagina with his penis. When he again failed to get an erection, appellant performed oral sex on her. Appellant then smoked for a few more minutes and forcefully led the victim to a creek bed a few yards away. There, appellant forced the victim to perform oral sex on him and threatened to kill her. A few moments later, appellant, who was by that time standing behind the victim, threatened to hit the victim on her head with a rock. Appellant then penetrated the victim's vagina again with his penis, performed oral sex, penetrated her vagina with his fingers, and masturbated. He then left, and the victim was able to run for help. Along the way, the victim encountered her husband and young daughter, who, concerned because she had not returned home at her usual time, were looking for her. The family returned to their house, where the husband called the police. When the officers arrived, the victim recounted her ordeal and, at the officers' request, led one of the officers to the various places appellant had taken her. The victim then went to the hospital, where a rape exam was performed. Subsequently, the victim identified appellant in a live line-up. The victim also identified appellant in court and testified she remained afraid for her and her unborn baby's safety throughout the entire ordeal. Other State witnesses included the investigating officers, the garbage truck driver, and forensic experts. The experts tested various items collected during the investigation attempting to find scientific evidence linking appellant to the assault, but found no such evidence. According to testimony, this was not uncommon, particularly in light of the facts of the case. Appellant did not testify and did not call any witnesses.

Sufficiency of the Evidence

In points one, two, and four through eleven, appellant challenges the legal and factual sufficiency of the evidence to show: (a) he threatened to cause the death, serious bodily injury, or kidnaping of the victim; (b) his male sexual organ penetrated the victim's female sexual organ; (c) his male sexual organ penetrated the victim's mouth; (d) his finger penetrated the victim's female sexual organ; and (e) his mouth penetrated the victim's female sexual organ. In arguing these points, appellant notes the only testimony concerning appellant's actions came from the victim, the victim never saw the gun or rock with which appellant allegedly threatened her, and there was no scientific or medical evidence showing actual penetration of either the victim's mouth or sexual organ. Although appellant correctly notes what the evidence did not show and correctly notes there was no testimony, other than the victim's, concerning appellant's actions, we reject his contentions that the evidence is legally and factually insufficient to support the conviction. In a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In conducting a factual sufficiency challenge, we determine whether a neutral review of all the evidence viewed by the fact finder establishes the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In both sufficiency reviews, the trier of fact may draw reasonable inferences from the evidence before it and is the exclusive judge of the witnesses' credibility and of the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647, 648-49 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). Viewing the evidence under the appropriate standard, the record reflects the victim identified appellant as the assailant in a live line-up and again in court and testified she was in fear throughout the entire ordeal. The record further reflects appellant repeatedly penetrated the victim's female sexual organ with his penis, mouth, and fingers. Additionally, he forced her to perform oral sex on him and forced her to go with him to different locations within the area by threatening her first with a gun and then with a rock. Although this evidence came exclusively from the victim, it was uncontradicted. Moreover, the jury was free to accept her testimony in its entirety. Jones, 944 S.W.2d 647, 648-49; Bruno, 922 S.W.2d at 293. In fact, a sexual assault victim's testimony alone is sufficient to support the conviction. Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978); see also Sims v. State, 84 S.W.3d 768, 774 (Tex.App.-Dallas 2002, pet. filed) (noting article 38.07(a) of the code of criminal procedure provides a conviction for aggravated sexual assault is supportable on uncorroborated testimony of victim alone, where, as here, she informed any person, other than defendant, of alleged offense within one year of alleged offense). No medical or scientific evidence is necessary to support the conviction, and it is not necessary, in order to establish the aggravating factor, for the victim to actually see the object with which she is threatened. See Empty v. State, 972 S.W.2d 194, 196 n. 1 (Tex.App.-Dallas 1998, pet. ref'd); Dalton v. State, 898 S.W.2d 424, 429 (Tex.App.-Fort Worth 1995, pet. ref'd), disapproved on other grounds by Watkins v. State, 946 S.W.2d 594, 602 (Tex.App.-Fort Worth 1997, pet. ref'd). Given the record before us, we conclude the evidence is legally and factually sufficient to support the conviction. We overrule appellant's first, second, and fourth through eleventh points of error.

Ineffective Assistance of Counsel

In his thirteenth point of error, appellant contends his counsel was ineffective in failing to call him as a witness, failing to discuss his motion for discovery with the prosecutor and obtain a list of the State's witnesses before trial, and failing to call any witnesses during punishment. Appellant contends that, but for counsel's failures, he would not have been convicted of aggravated sexual assault and would not have been assessed the maximum sentence. We reject appellant's contentions. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We indulge a strong presumption that counsel is competent and will find appellant has overcome that presumption only when appellant makes the necessary showing of both deficient performance and prejudice. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). To prove deficient performance, appellant must show from the record that counsel's performance diverged from "prevailing professional norms." Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000) (quoting Strickland, 466 U.S. at 688). To establish prejudice, appellant must show from the record a reasonable probability that the result would have been different but for counsel's deficient performance. Id. Where counsel's alleged deficiency consists of a failure to call witnesses or prepare for trial, the record must reflect what, had counsel developed or developed more thoroughly, might have led either to a not guilty verdict or to a lesser punishment. See Bone v. State, 77 S.W.3d 828, 836-37 (Tex.Crim.App. 2002). A reasonable probability is one sufficient to undermine confidence in the outcome. Id. In this case, appellant summarily states:

there would have been a different result if [appellant] had testified at the trial and if his trial counsel had been prepared for trial on the day the jury trial began. The [a]ppellant can show he was harmed by his attorney's actions in that he was found guilty of a first degree felony and the judge assessed the maximum punishment for that offense. The [a]ppellant therefore contends he did not receive reasonable effective assistance of counsel.

However, appellant fails to state what his testimony would have been had he been called to the stand, what a pre-trial discussion with the prosecutor concerning his motion for discovery would have accomplished, how counsel was affected by the failure to obtain the State's witness list prior to trial, and what witnesses counsel should have called during punishment. Additionally, appellant fails to show how any of these actions would have affected the outcome of the case. In failing to do this, appellant has failed to show prejudice, and thus, has failed to prove his ineffective assistance of counsel claim. See id. We overrule appellant's thirteenth point of error.

Cruel and Unusual Punishment

In his fifteenth point of error, appellant complains the sentence assessed by the trial court is excessive and constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. However, as the State points out, appellant did not raise this complaint at trial. Under rule of appellate procedure 33.1, an appellant must object at trial and obtain a ruling in order to preserve error on appeal. Tex. R. App. P. 33.1(a). Absent certain exceptions which are not relevant here, this rule applies to objections of a constitutional dimension. See Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App. 1995); Castillo v. State, 739 S.W.2d 280, 297 (Tex.Crim.App. 1987). Because appellant did not assert his Eighth Amendment claim at trial, he has failed to preserve this issue for review. We overrule appellant's fifteenth point of error.

Inadequately Briefed Points of Error

In his third, twelfth, and fourteenth points of error, respectively, appellant complains the court erred in denying his request for a jury instruction on the lesser included offense of sexual assault, denying his request for new counsel, and admitting extraneous evidence of his drug use during the commission of the charged offense. In arguing his third point, appellant states the relevant law, but fails to cite to any portion of the record which would support his contention and fails to analyze the law and apply it to the facts at hand. In arguing his twelfth and fourteenth points of error, appellant cites to the relevant portion of the record and states general propositions of law, but again fails to provide an analysis of the law and its application to the facts at hand. Under rule of appellate procedure 38.1(h), a brief to this Court must contain a clear and concise argument for the contentions made, appropriate citations to authorities and the record, and substantive analysis. Tex. R. App. P. 38.1(h); Walder v. State, 85 S.W.3d 824, 827 (Tex.App.-Waco 2002, no pet.). A brief which fails to do so, such as appellant's, is inadequate and presents nothing for review. Accordingly, we overrule appellant's third, twelfth, and fourteenth points of error. We note the trial court's judgment does not reflect appellant pleaded true to two enhancement paragraphs nor does it reflect that the court found them to be true. Accordingly, we modify the judgment to reflect that. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). As modified, we affirm the trial court's judgment.