Opinion
06-20-00130-CR
08-24-2021
DERRICK HARPER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: August 6, 2021
On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 19F1246-202
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Josh Morriss III Chief Justice
In a single trial under three separate indictments, a Bowie County jury found Derrick Harper guilty of two counts of continuous sexual abuse of a child under fourteen and one count of aggravated sexual assault of a child. As to each count, the trial court sentenced Harper to life in prison. In his sole point of error on appeal, Harper contends he received ineffective assistance of counsel because counsel failed to file any pretrial motions and failed to cross-examine any of the State's witnesses. Because we find that Harper did not receive ineffective assistance of counsel, we affirm the trial court's judgment.
Harper also appeals a second conviction of continuous sexual abuse of a child under fourteen years in our cause number 06-20-00131-CR, and one count of aggravated sexual assault of a child in our cause number 06-20-00132. Because Harper raised identical issues in all three appeals, he filed a single, consolidated brief. Accordingly, this opinion addresses Harper's sole point of error as it relates to each of his convictions.
At trial, Sarah testified that, when she was five or six years old, Harper placed his fingers in her sexual organ "more than five times" over a period of at least two years. Sarah explained that Harper would come into her room, tell her she was beautiful, sexually abuse her, and then tell her not to tell anybody or he would kill her. Sarah also said that Harper would have her touch his sexual organ during that same time. According to Sarah, Harper also forced her to put her mouth on his penis. Sarah said that Harper would have "parties" where he sexually abused her and other young girls.
To protect the identity of the children involved, we refer to them by pseudonyms. See TEX. R. APP. P. 9.8(b)(2).
Sue testified that, when she was eight years old, she, along with two other girls, were taken to Harper's house for a "birthday party." Sue said she did not want to attend the party. During the party, Harper told the girls to go into one of the bedrooms. When they did as he said, Harper locked the door. Harper then told the girls to get in the bed and lay on their backs. Sue explained that Harper pulled down her pants and underwear and then pulled down his own pants. Sue attempted to push Harper off her, but she was unsuccessful. Harper then placed his penis in Sue's vagina. According to Sue, Harper also placed his penis in her anus, and he touched her vagina. Sue said that, at one point, the girls tried to "make a run for it" but were unable to get out of the room because the door was locked. Sue said that Harper then began sexually abusing the other girls.
The other girls were eight years old or younger.
On another day, Sue went to her aunt's apartment for a visit. Harper was also there, along with a few other children. Believing that they were going to play a game, Sue and the other children were blindfolded by Harper. Harper told the children to lie face-down in a line on the bed. Sue said she heard the door shut and then lock. Sue yanked off her blindfold and saw Harper pulling one of the girl's pants down. Sue said that, on that day, Harper contacted and penetrated her vagina and her anus with his penis. Initially, Sue did not tell anyone what Harper had done because she did not want to be the person who got him in trouble.
Diedre is Harper's relative. Diedre testified that she had seen information on a social media site regarding Harper's arrest for the alleged sexual abuse of two girls. Diedre contacted the Texarkana, Texas, Police Department to inform them that she had also been one of Harper's victims.
This name is also a pseudonym. See TEX. R. APP. P. 9.8(b)(2).
According to Diedre, when she was four or five years old, Harper, who was around thirteen years old at the time, began sexually abusing her. During the first incident, Harper "exposed" himself and then forced Diedre to put her mouth on his penis. Soon after that, Harper began to sneak into her bedroom, climb into the bed with her, and touch her genitals on the top of her clothes. Diedre believed that Harper did that on at least three occasions. Harper told Diedre that, if she told her father what Harper had done to her, her father would kill him, and then Diedre would grow up without a father. Harper also told Diedre that her father would never believe her version of events because Harper was his brother. Although Diedre did not tell anyone about Harper's threats, she said that his threats scared her.
The abuse took place in Crossett, Arkansas.
During the summer of 2009, when Diedre was around thirteen years old, she went to visit her aunt and uncle in Bowie County. Soon after she arrived, Harper went into Diedre's room and told her that "[she] had changed now; [she was] different; [she] look[ed] like a woman." According to Diedre, on one occasion, Harper sexually assaulted her by penetrating her vagina with his penis. Diedre said that Harper also made her place her mouth on his genitals on two or three different occasions and that he made her "grab" his genitals with her hand. Diedre returned to Crossett but did not tell anyone about the abuse until she was nineteen years old, at which time she told her brother's ex-wife.
Among the State's witnesses, Tabitha Smith, Jessica Kelley, and Dustin Thompson testified.Smith, who is a detective with the Texarkana, Texas, Police Department, described some of the locations in which many of the alleged assaults took place. Smith also informed the jury of the victims' ages at the time of the alleged assaults, contrasting them with Harper's age at the time.Kelley, a trauma-based therapist and a forensic interviewer with the Texarkana Children's Advocacy Center, testified as an expert in the area of forensic interviewing. Kelley described the interviewing process in general, and she spoke at length about specific issues that sometimes arise when interviewing a child victim of sexual abuse. Kelley also conducted Sue's forensic interview.Thompson, an investigator with the Bowie County Sheriff's Office, became involved with the case following Sarah's outcry against Harper. According to Thompson, during an interview with Sarah, it was discovered that Harper had also been sexually abusing Sue, as well as another child, Donna. Thompson testified that Harper abused the girls in "a couple of different locations" and that Harper's abusive behavior toward the girls "overlap[ped]."
Harper maintained that the State's allegations against him were unfounded. As to some of the alleged assaults, Harper claimed that he was not in the same house or in the same town as the girls. Harper testified that the allegations against him were made up by the mother of one of his children. According to Harper, the claims were made up to try to extract money from him. Harper stated, "That's the reason why she came into the picture, for the money." He continued, "She threatened me with these charges back in March of 2019." He also claimed that she put the children "up to it."
Harper was referring to a supplemental security income check that had been issued for the child.
After hearing the evidence, the jury returned guilty verdicts on all three counts, and Harper was sentenced to life in prison on each count. This appeal followed.
In his sole point of error, Harper maintains that he received ineffective assistance of counsel because his counsel failed to file any pretrial motions and failed to cross-examine the State's witnesses. We disagree.
To prevail on a claim of ineffective assistance of counsel, an appellant must establish by a preponderance of the evidence both deficient performance by counsel and prejudice suffered by the appellant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The first Strickland prong requires a demonstration that trial counsel's performance failed to meet an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88; Nava, 415 S.W.3d at 289, 307 (Tex. Crim. App. 2013). The second, prejudice, prong requires a showing of a reasonable probability-one sufficient to undermine confidence in the outcome-that the result of the proceeding would have been different but for the deficient performance under the first prong. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308. Failure to establish either prong defeats the claim. Strickland, 466 U.S. at 700; Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 1999).
We review trial counsel's representation in a highly deferential manner and presume that such representation was within a wide range of reasonable assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thomas v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Only in rare and egregious circumstances will the record on direct appeal suffice to rebut the presumption of sound trial strategy. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.- Houston [1st Dist.] 1994, pet. ref'd).
One way to get evidence of counsel's trial strategy or other matters in the record on direct appeal is through a motion for new trial. Here, Harper filed a motion for new trial, but he did not allege that his trial counsel was ineffective.
As in this case, trial counsel's failure to file pretrial motions is not categorically deemed ineffective assistance because trial counsel could have reasonably determined that there was no benefit in filing the motions. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.). Specifically, Harper complains that his trial counsel failed to file a motion for discovery or an election as to who would determine his punishment. Harper merely speculates as to what may or may not have occurred had those motions been filed. Moreover, he has not shown that the trial court would have ruled in his favor or how a favorable ruling would have changed the outcome of his case. Accordingly, Harper has not satisfied either of the Strickland prongs.
Contrary to Harper's assertion, on October 6, 2020, he filed a written election to have his punishment assessed by the jury.
Next, Harper contends that his counsel was ineffective because he did not cross-examine the State's witnesses. Yet, several of the State's witnesses were Harper's alleged victims. Questioning sympathetic witnesses, such as Sarah, Sue, and Diedre, could have been a risky trial strategy. It is counsel's job to balance the risks against any potential gain of cross-examination. See Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973). This is especially so when, as here, the witnesses may have appeared to be in a vulnerable position, in which case, the jury could have been offended by counsel's questioning. Many reasonable lawyers might have determined that cross-examining the alleged victims carried with it too high of a risk.
Moreover, counsel's decision not to cross-examine the remaining State's witnesses also could have been the result of legitimate trial strategy. The record contains no suggestion that cross-examination could have gained Harper any traction; in fact, it could have brought to light even more damaging information from the victim and the other girls. Plus, if counsel had been unsuccessful in his cross-examination, his questioning could have served to bolster the credibility of the State's witnesses or emphasize their testimony. Unless there was a good basis on which to cross-examine the State's witnesses-and the record contains no hint of any such good basis-it could have been more effective to refrain from doing so to try to minimize the impact of that testimony. While Harper speculates as to what specific witnesses might have said on cross-examination or presumes that nothing could have been lost by cross-examining them, it is just that, speculation. Regardless, without evidence of what the witnesses would have said, Harper's generalizations cannot be validly assessed, much less serve as a basis for finding ineffective assistance of counsel.
Accordingly, we overrule Harper's sole point of error.
We affirm the judgment of the trial court.