Opinion
No. 05-03-00915-CR
Opinion Filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80085-02. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
A jury convicted appellant Gregory Shane Holmes of aggravated sexual assault of a child and assessed punishment at life imprisonment and a $10,000 fine. Appellant brings the following six issues on appeal: (1) ineffective assistance of counsel; (2) factual insufficiency of the evidence; (3) error in denying his motion for continuance; (4) improper jury argument; (5) error in excluding testimony regarding the conduct of the victim's biological father; and (6) error in sustaining the State's hearsay objection to an audio-taped telephone call to a Child Protective Services hotline. We affirm the trial court's judgment.
BACKGROUND
B.K., a six-year-old girl, lived with her mother and the appellant, who was her stepfather. One evening, she and appellant went in appellant's truck to return a video to Blockbuster. B.K. alleged that during the ride, appellant unbuttoned or unsnapped her pants and sexually assaulted her.FACTUAL SUFFICIENCY
In his second issue, appellant complains that the evidence is factually insufficient to show that appellant committed the offense of aggravated sexual assault of a child. A person may commit the offense of aggravated sexual assault of a child by intentionally or knowingly (1) causing the penetration of the anus or sexual organ of a child under fourteen by any means; (2) causing the penetration of the mouth of a child under fourteen by the sexual organ of the actor; (3) causing the sexual organ of a child under fourteen to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; (4) causing the anus of a child under fourteen to contact the mouth, anus, or sexual organ of another person, including the actor; or (5) causing the mouth of a child under fourteen to contact the anus or sexual organ of another person, including the actor. Tex. Pen. Code Ann. § 22.021(1)(B), (2) (Vernon Supp. 2004-05). In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000).Evidence
B.K. testified she was nine years of age. She stated that when she was six years old, appellant "stuck his finger" up her "private" when she went with him in his truck to Blockbuster to return a video one evening. After they returned home, B.K. noticed fresh blood on her panties when she went to the restroom. She showed the blood to her mother and told her mother what appellant had done. B.K. testified that appellant had sexually assaulted her at home prior to the incident in his truck. In the terminology of a nine-year-old child, she stated that on other occasions appellant had licked her vagina, forced her to touch his penis with her hand and mouth, touched her vagina with his penis, rubbed her buttocks, and attempted to place his penis inside her vagina. When he touched her with his penis, "white stuff" came out and landed on the floor and her stomach. B.K. testified that appellant had instructed her not to tell anybody what he had done. She stated that he either told her that he would hurt her or that he would hurt her family if she did. She finally told her mother because she wanted the abuse to stop. B.K. admitted that she told her mother at one point that her father, rather than appellant, sexually assaulted her. Then she testified that she had not been telling the truth and that her father had never sexually assaulted her, but that she told her mother he had because she knew how much her mother loved appellant. Doctor Stephan Kramer, an emergency room physician, testified that he had examined and interviewed B.K. late in the evening on the day after appellant and B.K. went to Blockbuster. B.K. told Kramer that appellant had ordered her to unbutton her pants and then placed his fingers inside her vagina. B.K. told him that appellant had assaulted her many times before, but told her not to tell. She also told Kramer that no one besides appellant had ever sexually assaulted her. During the examination, Kramer noted a superficial abrasion to the inside left portion of B.K.'s vagina. He testified that an abrasion of that type could be expected to heal within a couple of days. He stated that the abrasion was consistent with the finger penetration B.K. had described to him. Police detective Geran Amanda Rutledge testified that she responded to a report of sexual assault made when B.K. visited the emergency room. She talked to B.K., who described the sexual assault to her and told her the name of the perpetrator. Police officer Sherwood E. Holmes testified that he was also called to the emergency room to investigate B.K.'s sexual assault. He had a brief conversation with B.K., in which she told him what had happened, who had sexually assaulted her, and where the assault had taken place. Holmes also testified that he had some difficulty convincing B.K.'s mother to believe B.K. and to "be there for" B.K. Carol Goldburg, a certified pediatric sexual assault nurse, testified that she conducted a sexual assault examination and interview of B.K. several days after the incident in appellant's truck. B.K. told her that appellant placed his finger in her vaginal area and made her bleed, licked her vagina, forced her to lick his penis, placed his penis in her buttocks, and licked her buttocks. B.K. told her that she saw "white stuff" come out of his penis. B.K. never indicated to Goldburg that anyone other than appellant ever sexually assaulted her. Goldburg also testified about the detailed genital examination she conducted. She saw no evidence of any trauma during the examination, but noted that about eighty-five percent of the children she examined following sexual assaults showed no evidence of trauma. Goldburg stated that the vaginal wall heals very quickly and that an abrasion to a child's vaginal area usually heals in less than 48 to 72 hours. She testified that nothing in the examination was inconsistent with what B.K. reported to her. B.K.'s mother testified that sometime after appellant and B.K. returned from the trip to Blockbuster, B.K. showed her the blood on her panties. B.K.'s mother asked her if someone had put something inside her or if somebody had "put a finger in." B.K. responded "uh-huh." She testified that she "kind of spoke for" B.K. B.K.'s mother testified that she was suspicious about the amount of time it took appellant and B.K. to make the trip to and from the Blockbuster store until appellant told her that he had also been to a gas station and she timed the drive to the gas station. B.K.'s mother also testified that at one point B.K. told her that her father, rather than appellant, had sexually abused her. She also stated that once after B.K. returned from visiting her father, B.K. showed her a small cut in her vaginal area. On a different occasion, B.K.'s vaginal area was red and "a little irritated" when she returned home from her father's house. Janice Moery, B.K.'s elementary school counselor, testified that B.K. told her that appellant had touched her inappropriately with his fingers and that he had attempted to place his penis inside her, but it would not fit. When talking with Moery, B.K. consistently identified appellant as the person who had sexually assaulted her. She also told Moery that appellant had threatened her so that she would not tell anyone else about the sexual assaults. Janetta Michaels, the chief operating officer and forensic interviewer at the Children's Advocacy Center, conducted three videotaped forensic interviews of B.K., which were published to the jury. Michaels also testified about the interviews. During the first interview, B.K. identified appellant as the person who sexually assaulted her. B.K. told Michaels that appellant sexually assaulted her in their home, in an apartment in which they had lived prior to living in the home, and in his truck on the way to Blockbuster. B.K. told Michaels that appellant unbuttoned and unzipped her pants and put his finger in her vagina during the drive to Blockbuster. B.K. talked about the blood she later found on her panties. She told Michaels that appellant attempted to place his penis inside her vagina at other times when she and appellant were alone. B.K. said that appellant forced her to lick his penis and that he licked her vagina. B.K. said that his penis had been hard and that "white stuff" had come out and gotten on her stomach and hair. During the second interview, B.K. told Michaels that her mother did not really believe that appellant committed the sexual assault. B.K. stated that her mother read her a note from appellant, in which appellant stated that he did not assault B.K. When Michaels asked B.K. if anyone asked her to take back what she said about Shane, she replied that her mother had. During the third interview, B.K. told Michaels that she told her mother that her father, rather than appellant, had sexually assaulted her. She explained that she accused her father to make her mother feel better. She stated that her father had not touched her and that no one besides Shane had ever touched her inappropriately. Appellant testified that he did not sexually assault B.K. during the drive to Blockbuster or at any other time. He stated that B.K. went to sleep on the ride and that he stopped to buy gas and beer after leaving Blockbuster. Other than the trip to Blockbuster, he could not remember ever being alone with B.K. He testified that he had never given her a bath. Later he testified that he had been alone with her in rooms of the house and that he washed her hair once when she was unclothed in the bathtub. After a neutral review of all the evidence, both supporting and against the findings, we can say that the jury was rationally justified in finding guilt beyond a reasonable doubt. We hold that the evidence is factually sufficient to support appellant's conviction for aggravated sexual assault of a child. We overrule issue two.INEFFECTIVE ASSISTANCE OF COUNSEL
Standard of Review In his first issue, appellant contends that he was not afforded effective assistance of counsel. The standard for reviewing claims of ineffective assistance of counsel is articulated in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held that the appellant must prove that counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on having produced a just result." Id. at 686; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Strickland established a two part test. First, appellant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 687. In order to do so, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of the particular case and viewed at the time of counsel's conduct. Id. at 688-90. In evaluating this standard, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant has the burden to overcome this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). An appellate court may not reverse a conviction on the grounds of ineffective assistance of counsel when counsel's actions or omissions may have been based on tactical decisions, and the record contains no specific explanations for counsel's decisions. See Bone v. State, 77 S.W.3d 828, 833-37 (Tex.Crim.App. 2002). Second, Strickland requires appellant to show that counsel's performance prejudiced his defense at trial. Strickland, 466 U.S. at 692. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, he must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. at 694. "The question is whether there is a reasonable probability that absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695. As a result, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500. Appellant's Arguments Appellant contends that trial counsel was ineffective in failing to object to (1) evidence of prior bad acts alleged to have been committed by Appellant, (2) leading questions, and (3) hearsay. There is no evidence in the record of the reasoning behind counsel's actions. We properly defer to the strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. See Jackson, 877 S.W.2d at 771. Evidence of Prior Bad Acts Appellant first contends that his trial counsel was ineffective because he did not object to evidence of appellant's previous sexual assaults on B.K. Appellant argues that the previous sexual assaults were prior bad acts that should not have been admitted under Texas Rule of Evidence 404(b). He asserts that because trial counsel failed to object to evidence regarding these acts, the error in admitting the evidence was waived. Most of the previous acts introduced at trial involved conduct included in appellant's indictment. The State may put on evidence of multiple occurrences of the acts alleged in the indictment, even if the evidence shows that those acts were committed on a different date than the one shown in the indictment. Brown v. State, 6 S.W.3d 571, 575 (Tex.App.-Tyler 1999, pet. ref'd). Except for the evidence that appellant forced B.K. to touch him with her hands, the only difference between the conduct charged in the indictment and the other sexual assaults is the date. A variance in the date between the indictment and the evidence will not invalidate an indictment or a conviction. Id. Multiple commissions of the sexual acts charged in the indictment are not extraneous offenses for evidentiary purposes. Id. Therefore, the evidence of appellant's previous sexual assaults of B.K. that were charged in the indictment were admissible and trial counsel was not ineffective for failing to object. See Gosch v. State, 829 S.W.2d 775, 784 (Tex.Crim.App. 1991). Nothing in the record indicates why appellant's trial counsel failed to object to the evidence that appellant forced B.K. to touch him with her hands. Also, the record does not contain any evidence that this failure to object was not a part of trial strategy. As a result, we cannot conclude that failure to do so resulted in ineffective assistance of counsel. See Bone, 77 S.W.3d at 833-37. Leading Questions and Hearsay Appellant next contends that his trial counsel was ineffective in failing to object to leading questions and hearsay throughout the trial. Appellant fails to point out the specific instances of leading questions and hearsay to which his counsel should have objected. Rather, appellant cites several pages in the record in which he alleges the State asked Goldburg and Sherwood Holmes leading questions and other pages that he claims contain instances of hearsay elicited from Kramer, Moery, Michaels, and B.K.'s father. Additionally, appellant does not cite any case authority supporting his allegations and fails to provide any argument beyond his conclusory assertions. "Appellant must not only specifically identify the deficiencies in counsel's performance, but must also identify the specific objection that should have been made and provide authority in support of his argument that the objection would have been meritorious." Melonson v. State, 942 S.W.2d 777, 782 (Tex.App.-Beaumont 1997, no writ). As a result, appellant has failed to prove that counsel's performance was deficient in failing to object to leading questions and hearsay. See Mallet v. State, 9 S.W.3d 856, 866-67 (Tex.App.-Fort Worth, no pet.). Further, as we stated earlier, when the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. See Bone, 77 S.W.3d at 833-37; Jackson, 877 S.W.2d at 772. Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson, 9 S.W.3d at 813. In the case before us, appellant has failed in his burden to rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson, 877 S.W.2d at 771. Additionally, appellant has not demonstrated that there is a reasonable probability that absent any argued errors, the fact finder would have had a reasonable doubt respecting guilt. Accordingly, we overrule issue one.MOTION FOR CONTINUANCE
In his third issue, appellant contends that the trial court erred in denying the oral motion for continuance he made during trial. Shortly before the case was originally set for trial, someone placed an anonymous telephone call to Child Protective Services stating that at B.K.'s recent birthday party, B.K. told the caller's daughter that her father had sexually assaulted her. The trial court granted appellant's written motion for continuance, giving appellant additional time to identify the caller. The trial did not begin until over a month later. Appellant was unable to identify the caller prior to trial. At trial, appellant's attorney asked B.K. who had attended her recent birthday party. B.K. testified that, among others, M.R. and M.R.'s mother had attended. Appellant's attorney then made an oral motion for continuance to subpoena M.R. and her mother so that he could determine if M.R.'s mother had placed the anonymous phone call and, if she did, have her testify. The trial court denied appellant's oral motion for continuance. To preserve error in the denial of a motion for continuance, an appellant must make a motion for a new trial alleging the failure of the court to grant the continuance and must have an affidavit of the missing witness or a showing under oath from some source that the witness would actually testify to the facts set out in the motion for new trial. Varela v. State, 561 S.W.2d 186, 191 (Tex.Crim.App. 1978); Franklin v. State, 858 S.W.2d 537, 539 (Tex.App.-Beaumont 1993, writ ref'd); Love v. State, 730 S.W.2d 385, 401 (Tex.App.-Fort Worth 1987, no writ). Appellant failed to allege the court's denial of his motion for continuance in support of his Motion for New Trial and therefore failed to preserve this issue for appeal. Appellant also failed to preserve this issue for appeal because his motion for continuance was oral and unsworn. Generally, a motion for continuance must be in writing and sworn to by a person having personal knowledge of the facts relied upon for the continuance. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). Appellant cites O'Rarden v. State, 777 S.W.2d 455, 459-60 (Tex.App.-Dallas 1989, writ ref'd), in which this court created an exception to these requirements when the motion for continuance is based on equitable grounds and when the circumstances surrounding the trial court's denial of an oral motion for continuance amounts to a denial of the rudiments of due process. Since that case was decided, the Court of Criminal Appeals has held that a motion for continuance that is not in writing preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex.Crim.App. 1999). We need not reach the issue of whether O'Rarden remains good law in light of Dewberry because the circumstances in this case do not amount to a denial of the rudiments of due process. Because appellant's motion for continuance did not comply with statutory requirements, he did not preserve this issue for appeal. Even if he had properly preserved this issue, the trial court did not err in denying his motion for continuance. To establish that the trial court abused its discretion, appellant must show that he was actually prejudiced by the denial of his motion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002). Because the trial court granted appellant's pretrial motion for continuance, appellant had more than a month before trial to identify and locate the anonymous caller. The only new development at trial was B.K.'s testimony regarding who had been at her recent birthday party. Appellant sought the continuance to subpoena M.R. and M.R.'s mother, people B.K. had mentioned, to find out if M.R.'s mother made the phone call and to have her or M.R. testify if she had. Although the trial court denied appellant's motion for continuance, M.R. and her mother appeared at the courthouse during the trial. Appellant's counsel spoke with them and subsequently decided not to call them to testify. Because appellant was afforded ample opportunity prior to trial in which to identify and locate the anonymous caller and because he was able to find and talk to M.R. and her mother, he was not actually prejudiced by the trial court's denial of his motion for continuance. We find that appellant failed to preserve error regarding the trial court's denial of his oral motion for continuance. We also find that even if he had preserved error, the trial court did not abuse its discretion in denying his motion. Accordingly, we overrule issue three.HEARSAY
In his sixth issue, appellant contends that the trial court erred in excluding as hearsay the audio-taped recording of the anonymous telephone call placed to Child Protective Services. The State objected that the telephone call was hearsay, and the trial court sustained the objection. The rules of evidence define hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Hearsay that does not fall under an exception laid out in the rules or by statute is not admissible. Tex. R. Evid. 802. The admissibility of an out-of-court statement under the exceptions to the general hearsay exclusion rule is within the trial court's discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. Id. An abuse of discretion occurs "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Id. (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)). Appellant contends that the taped telephone call was admissible, not for the truth of the matter asserted, but for impeachment purposes. The State argues that appellant failed to preserve this complaint for review. The record shows that appellant offered the telephone call under Rule 803(3) and as a statement of personal or family history, but not that he offered it to impeach B.K. Therefore, he did not preserve this issue for review. Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003). Nevertheless, we find that the audio-taped telephone call was properly excluded as hearsay. An out-of-court statement is admissible if it is brought to impeach a witness, rather than to prove the truth of the matter asserted. See Tex. R. Evid. 613. The prior inconsistent statement of a witness is admissible to impeach the witness if the witness is told the contents of the statement and the time, place, and person to whom it was made and is given an opportunity to explain or deny the statement. Id. At trial, appellant did not present B.K. with or give her the opportunity to explain the statement on the tape. Further, the tape itself did not contain a statement by B.K. or even a statement by someone who had herself talked to B.K., but by an unknown caller reporting a statement by the caller's child. As a result, even if B.K.'s alleged statement itself was admissible, it was shrouded by additional layers of hearsay not falling under any exception. The tape consisted of an out-of-court statement by an anonymous caller reporting her daughter's out-of-court statement that B.K. told her, in an out-of-court statement, that her father sexually assaulted her. Because the tape contained layers of inadmissible hearsay, the trial court properly excluded the tape. See Tex. R. Evid. 805; Easley v. State, 986 S.W.2d 264, 269 (Tex.App.-San Antonio 1998). We find that the trial court did not abuse its discretion in excluding the anonymous audio-taped telephone call as hearsay. Accordingly, we overrule appellant's sixth issue.IMPROPER JURY ARGUMENT
In his fourth issue, appellant contends that the State improperly pled for the jury's sympathy for the victim. The prosecutor stated the following in closing argument:When you go back into the jury room you have to ask yourselves how many times you have said to yourself when you picked up the newspaper or turned on the television what is going on here, how do child molesters go free? Do children not tell? Do police not do their jobs? And if you have a problem with what the police did or what CPS did or mom or Roger did, tell them after a trial, write them a letter. But does that mean you are going to place [B.K.] in danger again? Is that the message you want to do to her?Appellant objected, and the trial court instructed the jury to disregard that portion of the argument. Appellant failed to follow up on his objection by requesting a mistrial and thereby waived the issue. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) (holding that failure to pursue an objection to adverse ruling waives error). Moreover, even if the issue had not been waived, the instruction to disregard cured any error. See Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999) (holding that trial court's instruction to disregard cures all but the most blatant comments). We overrule issue four.