Opinion
14-23-00437-CR
12-12-2024
JAMES JOSEPH KING, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish-Tex. R. App. P. 47.2(b).
On Appeal from the 482nd District Court Harris County, Texas Trial Court Cause No. 1728596
Panel consists of Justices Spain, Poissant, and Wilson.
MEMORANDUM OPINION
Charles A. Spain Justice
A jury found appellant James Joseph King guilty of the first-degree felony of aggravated sexual assault of a child. Tex. Penal Code Ann. § 22.021(a)(1)(B). The trial court then assessed punishment at imprisonment for 20 years. Tex. Penal Code Ann. § 12.32(a). Raising seven points of error on appeal, appellant contends he was denied effective assistance of counsel due to his counsel's failure to object to evidence admitted in trial, present mitigation and character evidence, and present expert testimony.
Although appellant filed a motion for new trial and the court held an evidentiary hearing, appellant's trial counsel was never called as a witness or given an opportunity to explain or defend her actions. Because the record on direct appeal is not sufficient and trial counsel's actions challenged in this appeal were not so outrageous that no competent attorney would have engaged in them, we overrule appellant's points of error and affirm the judgment of the trial court.
I. Background
Complainant made an outcry in 2020, when she was approximately 15 years old, that she was sexually assaulted at five or six years of age by appellant. Appellant and his wife were family friends of complainant's mother. After a party at appellant's house, complainant testified that she and her brother stayed the night at appellant's home without her parents. After everyone had gone to bed, complainant was left alone with appellant and she alleged that appellant engaged in conduct that constituted aggravated sexual assault of a child.
Appellant testified at trial and denied the allegations. Because of the long delay in complainant's outcry, the disputed issues at trial were complainant's and appellant's credibility.
After the trial court rendered judgment on the jury's verdict, appellant filed a motion for new trial. Appellant argued that he received ineffective assistance of counsel based on "his attorney's failure to investigate and present character witnesses during the guilt/innocence portion of his trial and failed to present expert testimony concerning memory when there is a delayed outcry." After an evidentiary hearing, the trial court denied appellant's motion.
II. Analysis
Appellant raises the following seven issues, all of which are claims of ineffective assistance of counsel because his trial counsel did not: (1) object to the admission of a written statement from complainant; (2) object to the testimony of complainant's mother regarding complainant's character for truthfulness; (3) object to the testimony of complainant's aunt regarding complainant's character for truthfulness; (4) object to the testimony of complainant's other aunt regarding complainant's character for truthfulness; (5) present any character witnesses during the guilt-innocence phase of trial; (6) present any character witnesses or expert testimony in the punishment phase of trial; and (7) present expert testimony regarding memory and delayed outcry.
A. Applicable law
Evaluating claims of ineffective assistance of counsel under the Sixth Amendment involves a two-pronged test: (1) whether counsel was deficient and (2) whether the defendant suffered prejudice as a result of counsel's error. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish that counsel's actions were deficient, the appellant must show, by a preponderance of the evidence, that counsel's actions fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Courts should consider the reasonableness of counsel's actions at the time, rather than viewing such actions through the benefit of hindsight. Strickland, 466 U.S. at 689. The court should make this determination in light of all the circumstances in order to determine if the actions fall outside the wide range of professionally competent assistance. Id. at 690.
"Under most 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 strong presumption that counsel's conduct was reasonable and professional." Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). Given this fact, trial counsel should ordinarily be afforded an opportunity to explain her conduct before being denounced as ineffective. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the absence of such an opportunity, when faced with an undeveloped record on direct appeal, "[c]ourts '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.'" Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013) (quoting Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005)). Counsel's actions are considered deficient only if the court finds, as a matter of law, that "no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of his or her subjective reasoning." Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
B. Silent record on trial counsel's motives
The record is silent as to trial counsel's reasons for not objecting to certain evidence, not calling character witnesses, not calling expert witnesses, or objecting to the testimony about complainant's character for truthfulness. After appellant filed his motion for new trial, the trial court set his motion for a hearing and requested to hear the motion on affidavits. Appellant further subpoenaed trial counsel, who attended the motion-for-new-trial hearing. However, appellant did not present an affidavit from trial counsel or call trial counsel as a live witness.
There was no indication by appellant at the hearing that he attempted to secure an affidavit from trial counsel but trial counsel refused. Therefore, despite the evidentiary hearing, appellant did not afford trial counsel an opportunity to explain her actions or trial strategy.
Under these circumstances, wherein counsel has had no opportunity to explain her actions, we will assume a strategic motive, if one can be ascertained, and find counsel deficient only if her conduct was so outrageous that no competent attorney would have engaged in it or, stated differently, if no reasonable trial strategy could justify counsel's actions. See Okonkwo, 398 S.W.3d at 693; Lopez, 343 S.W.3d at 143.
With respect to trial counsel's lack of objection to testimony about complainant's character for truthfulness asserted in points of error two, three and four, appellant's defense was that complainant invented the allegations. Trial counsel made an opening statement to the jury as follows: "One thing we're not gonna be able to tell you is why [complainant] made this story up. No way we can answer that. But we are going to give you . . . the rest of the story[.]" Given appellant's defense, trial counsel may have concluded that an objection to testimony bolstering complainant's character for truthfulness could not be supported. See Tex. R. Evid. 608 ("[E]vidence of truthful character is admissible only after the witness's character for truthfulness has been attacked"). We cannot say trial counsel's lack of objection to testimony about complainant's character for truthfulness was so outrageous no competent attorney would have made the same decision.
With respect to trial counsel's decision not to present expert testimony concerning complainant's delayed outcry and appellant's memory issues in point of error seven, appellant does not present any conduct so outrageous that no attorney would have engaged in it. Appellant first takes issue with the fact that trial counsel did not consult an expert on delayed outcries and degradation of memory. In his motion for new trial, he supplied an affidavit from a potential expert stating that delayed outcries can involve "forgetting and memory inaccuracy."
Clara Rivers from the Children's Assessment Center in Houston testified for the State. Rivers, not only interviewed complainant, but established her qualifications as an expert on forensic interviews with children and delayed outcries. In her testimony, Rivers stated that complainant gave sensory details of the assault. Rivers further testified that children who had been coached or who had memory issues would have trouble providing sensory details about their experience during their interviews. Complainant testified to detailed recollections of the incident, which included sensory details. Appellant never explains how a potential expert on delayed outcries would have countered or balanced the testimony from Rivers or how testimony about the accuracy of complainant's recollection would support his defensive theory that complainant invented the allegations.
Trial counsel did consult with a neuropsychologist regarding appellant's risk of recidivism, but did not call the expert to testify in the punishment phase of trial. Appellant asserts the neuropsychologist could have testified that appellant's risk "of any type of criminality and sexual offending is very low." The neuropsychologist could also have testified to "[a]ppellant's cognitive condition to explain any memory lapses or the manner in which he answered questions" because the expert's testing reflected some cognitive and memory impairment. Although appellant argues his counsel should have called this expert to testify, appellant did not establish the availability of the witness or the benefit appellant might have received. Appellant himself testified that he takes medication for various medical issues that affect his memory. It was undisputed at trial that appellant had no prior criminal record, no prior allegations of sexual (or other) misconduct against him, and that otherwise his background reflected military service with an honorable discharge and years of work experience for military contractors. Without more, we cannot say trial counsel's decision not to present the neuropsychologist expert was so outrageous no competent attorney would have made the same decision.
In point of error one, appellant argues that trial counsel did not object to the admission of a handwritten statement made by complainant. However, trial counsel told the trial court that she intended to use the statement as part of her impeachment. Although trial counsel did not specifically pose questions to complainant regarding the written statement, she asked questions during her cross-examination about facts or statements contained within the handwritten statement. Trial counsel then used the handwritten statement in her closing to highlight inconsistencies and impossibilities in complainant's various accounts of the incident and argue that the allegations were not true. Without more, we cannot say trial counsel's failure to object to the handwritten statement was so outrageous no competent attorney would have engaged in it.
Finally, appellant argues in points of error five and six that his trial counsel should have called character witnesses and put on mitigation evidence in both the guilt and punishment phases. An affidavit from appellant's wife reflects that trial counsel asked for names of character witnesses and did contact those witnesses. Trial counsel later told appellant's wife that she decided not to call any of those character witnesses. This evidence reflects that trial counsel considered character witnesses and made a reasoned decision not to call the individuals with whom she spoke. Trial counsel did attempt to call appellant's wife in the punishment phase of trial. After appellant's wife was asked to come up to the stand, trial counsel advised the court that appellant's wife was "unable to testify right now."
Without an evidentiary hearing at which trial counsel was afforded an opportunity to explain her actions, we cannot conclude trial counsel had no reasonable trial strategy. Because the conduct alleged by appellant is not so outrageous on its face that no competent attorney would have engaged in it, further discussion of the alleged ineffective assistance would not serve any purpose and could possibly prejudice any future habeas-corpus proceeding on ineffective assistance of counsel.
III. Conclusion
Because the record on direct appeal is not sufficient and trial counsel's actions challenged in this appeal were not so outrageous that no competent attorney would have engaged in them, we overrule appellant's seven points of error and affirm the trial court's judgment as challenged on appeal.