Opinion
Nos. 12-04-00011-CR, 12-04-00012-CR
Opinion delivered January 13, 2006. DO NOT PUBLISH.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired Justice, Twelfth Court of Appeals, TYLER, sitting by assignment.
MEMORANDUM OPINION
A jury found Appellant guilty of aggravated sexual assault of a child (appellate cause number 12-04-00011-CR) and indecency with a child by sexual contact (appellate cause number 12-04-00012-CR). Each indictment contained an enhancement paragraph alleging a prior conviction for indecency with a child. After the jury returned its verdict, Appellant pleaded true to the enhancement allegation in each indictment, and the trial court sentenced him to mandatory life sentences to run consecutively. In four of the five issues presented, Appellant maintains he was denied effective assistance of counsel. In his fifth issue, Appellant complains the trial court erred in allowing the victim to testify about extraneous offenses committed by Appellant against the victim's mother. We affirm.
BACKGROUND
A.W., the victim, was twelve years old at the time of trial. She lived with her mother, brother, and Appellant for about four years prior to her removal from the home by Child Protective Services ("CPS") after she reported the offenses. A.W. testified that about a week before school ended in 2002, Appellant started "doing stuff." "The first time he tried," he tried to stick his hand under her skirt. This happened a second time. The third time this happened he touched her "below section," meaning her genitals. She told the jury that ultimately he partially penetrated her with his penis once and with his finger fifteen times. She said the last and most serious assault occurred Saturday, November 2, 2002, at her home while her mother and brother were out shopping. She said she bled a little from the vaginal area after the assault. When she told her mother about the bleeding, her mother assumed that she was beginning her menstrual cycle. On the following Friday, November 8, 2003, A.W. told three of her friends at school what had happened to her on Saturday. They persuaded her to go to the school office and report what had happened. She reported what had happened to Kathy Jackson, a teacher in the school office, who was designated as the outcry witness at trial. A.W. repeated the story to the assistant principal, Ronnie Snow, and then to the principal, Renee Campbell. Snow called the police and A.W.'s mother. Appellant was arrested, and CPS removed both children from the home. A.W.'s mother refused to believe that the alleged abuse occurred. At the time of trial, A.W. lived in her second foster home.INEFFECTIVE ASSISTANCE OF COUNSEL
In his first four issues, Appellant complains that his trial attorney was ineffective. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v.Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted for Texas constitutional claims in Hernandezv. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To meet his burden, an appellant must prove that his or her attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Our review of counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. This Court will not second guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App. 1979). That another attorney, including the appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex.App.-Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompsonv. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We further recognize that the Texas Court of Criminal Appeals has held that, 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 decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. Mallett v.State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). In addressing this reality, the court has explained that appellate courts can rarely decide the issue of ineffective assistance of counsel because the record almost never speaks to the strategic reasons trial counsel may have considered. The proper procedure for raising this claim is therefore almost always habeas corpus. Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003). Nevertheless, some claims may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." Massaro v. United States, 538 U.S. 500, 508, 123 S. Ct. 1690, 1696, 155 L. Ed. 2d 714 (2003); Thompson, 9 S.W.3d at 814 n. 6. Inadmissible Hearsay In his first issue, Appellant contends that his counsel was ineffective in failing to object to inadmissible hearsay. Katherine Sloan, the twelve year old friend and classmate of A.W., testified, without objection, that while they were between classes, A.W. told her that "her stepfather molested her." Another classmate, Cheyenne Holloman, told the jury that A.W. told her "the guy who her mother was with had raped her." The assistant principal, Ronnie Snow, testified that A.W. told him the man living in their home had raped her and touched her inappropriately. Appellant's attorney objected to this testimony. Snow proceeded to testify, without objection, that he heard A.W. tell the principal "she had been assaulted in some manner and that he lived with them and it happened sometime the weekend before." The State maintains that the specifically challenged statements were admissible as excited utterances and prior consistent statements. The excited utterance hearsay exception permits admission of a hearsay "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. R. Evid. 803(2). This exception is founded on the belief that such statements are trustworthy, because they are involuntary and do not allow the declarant an adequate opportunity to fabricate. Couchman v. State, 3 S.W.3d 155, 159 (Tex.App.-Fort Worth 1999, pet. ref'd). It is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event, although these are among the factors to be considered in deciding whether a statement is admissible under the exception. Salizar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001). "The critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement." Id. The evidence shows that during the six days between the assault on Saturday night and her statements made the following Friday at school, A.W.'s conduct was not out of the ordinary. Therefore, it appears that she was no longer under the stress or excitement of the event. The State also argues that the startling event that triggered the excited utterance was the fear of returning home to Appellant. The identical argument was advanced and rejected in Mosley v. State, 960 S.W.2d 200, 204 (Tex.App.-Corpus Christi 1997, no pet.). The court held that the "excitement" experienced by the declarant must be continuous between the event itself and the statement describing it. Id.; see alsoAguilera v.State, 75 S.W.3d 60, 68 (Tex.App.-San Antonio 2002, pet. ref'd). Although not admissible as excited utterances, the challenged statements were admissible as prior consistent statements. A statement is not hearsay if (1) the declarant testifies at the trial and is subject to cross examination concerning the statement, (2) the statement is consistent with the declarant's testimony, and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. TEX. R. EVID. 801(e)(1)(B). On cross examination, Appellant's counsel asked A.W. if she had told her foster parent that she was not severally abused by Appellant. A.W. responded, "Yes sir." Moreover, Appellant's counsel's questions were framed to imply that A.W. was persuaded by CPS to abandon her attempt to recant her accusation against Appellant. The statements were admissible and Appellant's trial attorney was not ineffective in failing to object to them. Bolstering In his second issue, Appellant maintains that counsel was ineffective in failing to object to numerous examples of witness bolstering. Bolstering occurs when additional evidence is used to add credit worthiness to earlier unimpeached evidence offered by the same party. SeeBolden v. State, 967 S.W.2d 895, 898 n. 1 (Tex.App.-Fort Worth 1998, pet. ref'd). It was clear from opening statements that the credibility of the victim was an issue. Before A.W. testified, the State called Wade Norris as its first witness. Norris testified that before talking to A.W., he talked to Ronnie Snow, the assistant principal who had called the sheriff's office to report A.W.'s allegations. In response to the prosecutor's questions, Norris testified that the version of events related to him by A.W. "was consistent" with what Ronnie Snow had told him earlier. Appellant's attorney made no objection. Norris also testified, without objection, that the story A.W. told the nurse at the help center was "consistent with" the story she had told him. The prosecutor, by his questions, sought to elicit responses that would give greater weight to A.W.'s testimony. However, at this point in the trial, there had been no attempt to impeach A.W. This constituted bolstering, and Appellant's attorney should have objected. Appellant, in his brief, cites several other examples where the witnesses were allowed to testify, without objection, that they had heard A.W. tell what had happened to her and that what she said was consistent with what she had told the witness or others in the witness's presence. In almost all of these instances, the testimony was elicited after A.W. had been subjected to Appellant's effort to impeach her. Such statements were not hearsay, but consistent statements "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." See TEX. R. EVID. 801(e)(1)(B). Appellant's attorney was not derelict in failing to object. Appellant points out that the State first raised the matter of A.W.'s attempt to recant her accusation of him. In direct examination, A.W. told the jury about her own inconsistent statement. Appellant argues that "it is disingenuous for the State to introduce an inconsistent statement . . . for the sole purpose of introducing numerous consistent statements." Appellant's argument has been rejected in Bolden. Id. at 898. Extraneous Offenses In his third issue, Appellant contends that his counsel was ineffective in allowing the State's experts to testify, without objection, to A.W.'s credibility. Under Texas Rule of Evidence 702, ifscientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.TEX. R. EVID. 702. There is a "fine but essential" line between helpful expert testimony and impermissible comments on credibility. Schutz v.State, 957 S.W.2d 52, 60 (Tex.Crim.App. 1997) (quoting Statev. Myers, 382 N.W.2d 91, 98 (Iowa 1986)). Expert opinion must aid — not supplant — the jury's decision. Schutz, 957 S.W.2d at 59. Expert opinion does not assist the jury if it constitutes "a direct opinion on the truthfulness" of a child complainant's allegations. Id. (quoting Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App. 1993)). Expert testimony that a child exhibits behavioral characteristics empirically shown to be common among children who have been sexually abused is relevant and admissible as substantive evidence under Rule 702. Vasquez v. State, 975 S.W.2d 415, 417 (Tex.App.-Austin 1998, pet. ref'd) (op. on reh'g). Testimony regarding the factors for truthfulness observed by experts directly comments on the truthfulness of the child and is inadmissible. Edwards v. State, 107 S.W.3d 107, 116 (Tex.App.-Texarkana 2003, pet. ref'd); Yount, 872 S.W.2d at 708 (citing State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, 76 (1986) (testimony that only a small proportion of incest victims lie is tantamount to testimony on the guilt of the accused); Commonwealth v. Ianello, 401 Mass. 197, 515 N.E.2d 1181, 1184-85 (1987) (testimony that "children rarely make these things up" held inadmissible)). In Schutz, the court held that testimony that the victim's allegations "were not the result of fantasy" constituted a direct comment on their truthfulness. Schutz, 957 S.W.2d at 73. A.W. was sent to Dr. McBride, a clinical psychologist, for evaluation to determine if A.W. suffered from "organic impairment to the child telling the truth" or if she would "misrepresent because there may be some sort of physical or mental problem that would interfere with [her] telling the truth." His testing also sought to determine if the child was being "forthright." Dr. McBride's opinion was based on a battery of tests, a one hour interview, and three hours of interviews with two other persons in his office. Appellant's complaint relates to the following testimony:
Q. Doctor is there anything that you found or two of your colleagues found in regard to [A.W.] in all of your interviews and information that you received and your testing — is there anything in all of that material that would give you any reason to believe she has not been sexually assaulted?
A. No. Redirect examination included the following exchange:
Q. [I]s there anything whatsoever that leaves any doubt in your mind that she is showing classic symptoms of being a victim of sexual abuse?
A. No. I — I believe that what she told me is her reality. And she's not psychotic so . . .On further redirect examination, Dr. McBride told the jury that "my professional opinion is that what A.W. said and the testing we got was congruent with a child who had been sexually abused." A report made by Dr. McBride and his associates and introduced during his testimony contains entries that Appellant argues assume the truthfulness of A.W.'s accusations. The first entry is that "[c]onsidering the pt's history (emotional and sexual abuse) . . . it may be helpful to view her behavior in terms of a grieving process." The second entry states that "[f]ortunately, the pt. appears to have sufficient psychological resources to learn how to deal with and benefit from therapy." Appellant's counsel did not object to the quoted testimony or the report. In a rambling and nonresponsive answer to a question posed by Appellant's counsel during cross examination, Dr. McBride volunteered that "[t]he only diagnosis that we could come up with was this kid was sexually and physically abused." Kelly Smith, a licensed professional counselor with a master's degree in psychology and fifteen years of experience in counseling child victims of sexual assault, also testified as an expert. She had spent many hours counseling patients during the year prior to trial. Appellant maintains that Smith was not qualified under the medical diagnosis and treatment exception to testify about A.W.'s statements regarding sexual assaults. Further, Appellant contends his counsel was ineffective in failing to object to her testimony that assumed the truth of A.W.'s allegations. Appellant argues that his counsel was especially lax in failing to object to the following testimony:
Q. So if [A.W.] previously testified that she was abused starting in the summer of 2002 and it gradually increased until Mr. Heathco actually put his penis inside of her on approximately November 8th, is that behavior consistent with your experience in dealing with child sexual assault victims?
A. Yes, it is. I believe when Mr. Heathco got to the point where he was trying to penetrate her vaginally. I think that was her breaking point at which she decided that she had to tell somebody.Elsewhere in her testimony, Smith referred to A.W. not having anger toward Appellant "other than because of these sexual assaults" and testified that nothing had surfaced during her counseling sessions that would indicate she was mad at Appellant "prior to the beginning of these sexual assaults." The prosecutor asked if it was difficult for a twelve year old child to express these emotions and continue to tell the same story "and all of it be a lie?" Smith responded that "it's highly unlikely." Appellant contends both Dr. McBride's and Smith's testimonies went beyond their ostensible purpose of determining "whether the child is capable of giving a clear and coherent statement" because of some emotional or cognitive problem and whether the complainant's behavior was consistent with behavioral characteristics exhibited by sexually abused children. Instead, Appellant argues, their testimony impermissibly commented directly on the only real issue in the case, the complainant's credibility, and the witnesses, in their testimony and records, assumed Appellant's guilt. The State argues that Dr. McBride stated on cross examination that none of the tests he had indicate whether A.W. was lying or telling the truth and that there is no way to test if a child has been sexually abused. On cross examination, Dr. McBride stated he was unaware that A.W., while living with foster parents, had at one time recounted her accusation against Appellant. The State claims that the question posed by the prosecutor — "Is there anything in all the material you received, which included interviews, testing, and information that would give you any reason to believe she was not sexually abused?" — was not an attempt to elicit Dr. McBride's opinion that A.W. had been sexually abused, but was asked only to inquire if she manifested signs of manipulation (by CPS) and if she exhibited signs common to assaulted victims. The State points out that Dr. McBride's report was introduced without objection and that Dr. McBride explained, on cross examination, that the information regarding her history came from CPS and A.W. At no time, the State argues, did Dr. McBride state that he believed A.W. or that she was telling the truth. At trial, however, the State stressed a different interpretation of Dr. McBride's and Smith's testimonies during closing argument, stating in part as follows:
The issue is simply is A.W. telling you the truth. And all the people that testified after her, are they lying to you? And if they're not lying to you, is their professional opinion just mistaken and they've been fooled by a 12-year-old? That's what this boils down to. The testimony of A.W. and everybody else that testified behind her are just simply wrong or lying.
Dr. McBride and Kelly Smith told you this is the classic example of sexual assault abuse victims. Kelly Smith told you this is exactly how sexual assault abuse victims act. There is nothing in my entire nine months of counseling her that makes me believe she was not sexually assaulted by this defendant.
Dr. McBride told you when she was telling me that story, she was acting exactly like sexual assault abuse victims act that I've seen time and time and time again.
And you have to find, number one, Kelly Smith doesn't know what she's talking about and Dr. McBride doesn't know what he's talking about.In Sessums v. State, 129 S.W.3d 242 (Tex.App.-Texarkana 2004, pet. ref'd), a case cited by Appellant involving the aggravated sexual assault of a child, the State's experts were asked what factors indicating truthfulness they employed to determine if the child was telling the truth. Each of them then testified, without objection, that the child fit those factors. In closing argument, the prosecutor argued, without objection, as follows:
He didn't fool all those people. I brought you a bunch of people with years of experience. Every one of them said the kid's telling the truth, he done it. You have got to find that kid is a liar and all those people are fools and don't know what they are doing in order to find him not guilty.In reversing the case, the Texarkana court held that trial counsel's failure to challenge "objectionable testimony of the most outrageous and destructive type" was so deficient as to deny the appellant effective assistance of counsel. In the instant case, the State's expert witnesses did not directly state that A.W. was telling the truth or that she fit all the factors common to truth tellers. Nor did the prosecutor expressly argue that the witnesses said that A.W. was telling the truth. But the tenor of the evidence and argument in our case closely parallels the evidence and argument in Sessums. Their testimony went beyond showing that the child's behavior was consistent with that exhibited by children who have been sexually abused, or that she was psychologically capable of telling the truth and disclosed in her interviews no indicia of untruthfulness. The unchallenged testimony and records of the State's experts in the instances cited by Appellant either assumed Appellant's guilt or demonstrated a personal belief in her credibility and the truth of her accusations against Appellant. Appellant's trial counsel was derelict in failing to challenge the expert's evidence that expressed or implied a personal belief in A.W.'s credibility or assumed Appellant's guilt. Extraneous Offenses In his fourth issue, Appellant contends his attorney's performance was deficient in failing to object to A.W.'s testimony that Appellant penetrated her vagina with his finger more than a dozen times (in all, over fifteen times) in the months leading up to the date of the charged offense. The indictment charged Appellant with intentionally and knowingly causing the penetration of A.W.'s sexual organ with his sexual organ on November 3, 2002. Before trial, the State gave timely notice of its intent to introduce evidence of extraneous offenses committed against A.W. The notice did not describe the offenses with any particularity, but read as follows:
Pursuant to Article 38.37 of the Texas Code of Criminal Procedure, the undersigned Assistant District Attorney hereby gives notice to the Defendant and his counsel that the State intends to introduce in the case in chief, notwithstanding Rules 404 and 405 of the Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the Defendant against the child who is the victim of this offense for it's [sic] bearing on relevant matters, including, but not limited to, the state of mind of the Defendant and the child, and the previous and subsequent relationship between the defendant and this child.The Texas Code of Criminal Procedure provides that "evidence of other crimes, wrongs or acts committed by the defendant against the child shall be admitted for its bearing on relevant matters, including (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child." TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2 (Vernon Supp. 2005). Their admissibility is not contingent upon the impeachment of the victim. Ernst v. State, 971 S.W.2d 698, 699-70 (Tex.App.-Austin 1998, no pet.). As the State acknowledges, statutory approval of the admission of evidence of qualifying sex offenses against a child does not eliminate the need for the trial court to conduct a balancing test under Texas Rule of Evidence 403 when requested. Colvin v. State, 54 S.W.3d 82, 84 (Tex.App.-Texarkana 2001, no pet.); Walker v. State, 4 S.W.3d 98, 103 (Tex.App.-Waco 1999, pet. ref'd). On timely request by the defendant, the State must give defendant notice of its intent to introduce such evidence during its case in chief. TEX. CODE CRIM. PROC. ANN. art. 38.37 § 3 (Vernon Supp. 2005). Notice must be provided in the same manner as the State is required to give notice under Texas Rule of Evidence 404(b). Id. The purpose of the notice provision is to prevent the defendant from surprise at trial by evidence of offenses for which he is not charged and to aid him in preparing his defense. SeeSelf v. State, 860 S.W.2d 261, 264 (Tex.App.-Fort Worth, pet. ref'd). However, unlike Texas Code of Criminal Procedure article 37.07, section 3(g), neither article 38.37, section 3, nor Rule 404(b) prescribe the degree of specificity that the notice must contain regarding the other crimes, wrongs, or acts. During direct examination, A.W. testified to some fifteen other incidents of sexual abuse by Appellant during the five months leading up to the date of the primary offense. In her testimony, she said that she had disclosed several of these offenses to no one before she told the prosecutor a week before trial. Appellant's counsel raised no objection to A.W.'s testimony regarding the other incidents of sexual abuse preceding the primary offense based upon insufficient notice or surprise, nor did he contend that the prejudicial effect of the evidence of the extraneous offenses substantially outweighed its probative value and request the trial judge conduct a balancing test as required by Texas Rule of Evidence 403. On appeal, Appellant contends these omissions are but another example of his trial counsel's deficient performance. The State contends that its notice to Appellant substantially complied with article 37.07, section 3(g) because Appellant's pattern of extraneous bad acts occurred on multiple dates during a six month period, not merely one specific, identifiable date. The State also maintains that, absent a showing that the trial testimony surprised Appellant, the notice should be deemed sufficient. The State's notice at least should have described the extraneous offenses with more particularity than that given. Instead, the notice merely tracked the statute and did not attempt to describe the time or nature of the extraneous acts of sexual abuse against A.W. There was, however, no showing of surprise by Appellant, and the efficacy of an objection on this ground is doubtful. Moreover, the evidence of the extraneous acts was relevant to the purposes for which the State offered it, and in all likelihood the evidence would have been admitted after a Rule 403 balancing test, had one been requested. Given the low probability that an objection would have accomplished the exclusion of the evidence, we cannot characterize the trial attorney's performance as substandard in failing to urge a futile challenge. Conclusion on Ineffective Counsel Issues We are to assess the trial attorney's performance based upon the totality of his representation and a review of the entire record. Appellant's trial attorney faced a difficult task. Sixteen years before the trial in this case, Appellant was convicted of indecency with a child. His criminal record included other convictions for burglary, larceny, and assault and two convictions for driving while intoxicated. Conventional trial strategy dictated that Appellant not testify. Therefore, it was incumbent upon defense counsel to vigorously seek to limit the damaging evidence against Appellant to only that permitted by the Rules of Evidence and the Code of Criminal Procedure and to alertly challenge improper argument. We have noted several instances where trial counsel's performance was deficient. However, we are unable to conclude from this record that trial counsel's performance "fell below the standard of prevailing professional norms" and was constitutionally inadequate. Moreover, to obtain reversal, Appellant must not only prove that counsel's performance was below prevailing professional norms, but that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. From the record, it appears that A.W. was a candid and convincing witness. Except for the one occasion when she recanted her accusation against Appellant because she wanted to go home to her mother, she told a consistent story of sexual abuse. The testimony of her classmates, teachers, and principal was consistent with what A.W. told the jury. Dr. McBride testified that what she said and the results of her tests were "congruent with a child who had been sexually abused." Kelly Smith testified that her behavior was consistent with a child who had been sexually abused. A.W.'s mother testified that she did not believe her daughter. But considering the entirety of her testimony and the testimony of the other witnesses who were present when Appellant was arrested, the jury could have concluded that she was anxious to save her lover and callous to her child's distress. Her testimony was not helpful. The State's case was strong, if not overwhelming. Therefore, we cannot conclude that, but for trial counsel's ineffective representation as discussed above, the result would probably have been different. Appellant's issues one through four are overruled.