Opinion
No. 05-04-00492-CR
Opinion issued August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd District Court, Dallas County, Texas, Trial Court Cause No. F03-71678-HT. Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
OPINION
Calvin Ervin McNac appeals his sexual assault conviction. A jury convicted appellant and sentenced him to twenty years' confinement and a $10,000 fine. In three points of error, appellant argues the trial court erred in failing to sustain his objection to certain testimony and failing to grant appellant's and defense counsel's motions for defense counsel to withdraw, and he received ineffective assistance of counsel. We affirm the trial court's judgment. On September 3, 2002, sixteen-year-old M.B. was staying with friends at an apartment complex in Dallas. M.B. needed a ride to her cousin's home, and she arranged to get a ride from appellant's son. However, appellant showed up, and she got in the car with him. Appellant was "being nice," and M.B. told appellant she was "getting ready to turn seventeen." Appellant took M.B. to his house where he grabbed her by the hair and took her inside the house to his room. Although M.B. was crying and telling appellant to stop, appellant took her clothes off and put his penis in M.B.'s vagina. Appellant eventually stopped raping M.B. and went in the bathroom and took a shower. When he came back, appellant again put his penis in M.B.'s vagina and also put his penis in her mouth and his fingers in her vagina. Appellant then got a gun and put it to M.B.'s head and told her he would kill her if she told anybody. Appellant also urinated on M.B. Appellant eventually got dressed and allowed M.B. to get dressed. M.B., afraid that appellant would kill her if she did not do what he said, got back in appellant's car and appellant took her back to the apartment complex. At the apartments, M.B. told Nakesha Foster what had happened, and Foster called police. An ambulance arrived and took M.B. to the hospital where M.B. was given a pregnancy test and a rape kit. The test revealed M.B. was pregnant, though the baby was later stillborn. M.B. gave police a description of appellant, and Dallas police detective Jerry Williams contacted appellant and set up an appointment with him. Appellant came to the appointment willingly and told Williams he had given M.B. a ride and taken her to his house, but she never got out of the car and he did not have sex with her. Williams asked how M.B. knew the contents of appellant's house if she never went inside, and appellant remembered M.B. went inside "just to use the telephone." Williams got a search warrant for appellant's house and searched the house and obtained a buccal swab from appellant. Appellant was indicted on the offense of aggravated sexual assault. At trial, forensic biologist Melissa Sweetland testified appellant was a possible contributor to the non-victim DNA contained in M.B.'s rape kit, and the probability of a match between appellant and the DNA was one in 25.9 trillion, more than the population of the world. A jury convicted appellant of the lesser included offense of sexual assault. At the punishment phase of trial, the State introduced the testimony of Earl Murray, a security guard at an apartment complex. Murray testified that, in April 2003, he saw a man call a woman over to his car and start talking. The woman got in the car, and Murray noticed the couple's conversation "got kind of loud." The car drove away and was "going kind of fast" when the woman attempted to get out of the car by opening the passenger door and sticking out her foot. The man driving the car "grabbed her in the back of the head" and slammed her head against the dash. A few minutes later, the woman "came tumbling out of the car," and Murray called police and an ambulance. The man drove away without stopping, and the woman, identified as appellant's wife, Tonia McNac, ran over to Murray and said the man was her husband. Appellant objected to this testimony on the basis that it was testimonial and therefore "not within the Crawford limits." Appellant also objected that the State had not laid a foundation for the statement's admission as an excited utterance. The trial court overruled both objections. Dallas police officer Hans Bryson testified he arrived on the scene and questioned Tonia, who was "very upset, hysterical, sobbing, [and] very visibly shaken." Appellant again objected to the admission of statements Tonia made to Bryson because the statements were hearsay and violated appellant's rights under the Confrontation Clause. The trial court overruled appellant's objections, stating specifically the statements were not testimonial. Bryson testified Tonia told him that her husband, appellant, had "kept her overnight" and "was taking her to a different location" when, fearing for her safety, she tried to get out of the car and appellant bit her and "shoved her from the moving vehicle." The jury gave appellant the maximum sentence of twenty years' confinement and a $10,000 fine, and this appeal followed. In his first point of error, appellant argues the trial court erred in failing to sustain his objection to Tonia's testimony regarding appellant's assault against her. Specifically, appellant complains that Tonia's hearsay statements, admitted through the testimony of Murray and Bryson, were barred by the Confrontation Clause under Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004). In all criminal prosecutions, state as well as federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, "to be confronted with the witnesses against him." U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 404 (1965) (applying the Sixth Amendment to the States). In Crawford, the Supreme Court specified that "testimonial" hearsay evidence is inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 124 S. Ct. at 1374. The Court declined, however, to provide a comprehensive definition of testimonial evidence. Id. The instant case involves the out-of-court statement of Tonia, made at a time when she was neither under oath nor in custody. Thus, we must examine whether this statement falls within the guidelines provided by the Supreme Court for determining what statements are testimonial. In Crawford, the Supreme Court listed several non-exclusive examples of testimonial statements as follows: (1) ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extra-judicial statements contained in formalized testimonial materials, such as depositions, prior testimony, or confessions; and (3) statements that were made under circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial. Id. at 1364. Even under a narrow standard, ex parte testimony at a preliminary hearing or statements taken by police officers in the course of interrogations are also testimonial. Id. We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). A reviewing court should not reverse a trial judge whose ruling was within the "zone of reasonable disagreement." Id. at 102. Here, Tonia told Murray the man who pushed her out of the car was her husband. Murray was a security guard and not a police officer. The statement Tonia made to Murray immediately followed her being thrown from a moving car. Whether or not this constituted an excited utterance, the statement was not made to police, and Tonia could not reasonably expect the statement to be used prosecutorially. Under the circumstances of this case, we conclude the trial court did not abuse its discretion in ruling that Tonia's statement to Murray was not "testimonial" and therefore admissible. See Crawford, 124 S. Ct. at 1364; Green, 934 S.W.2d at 101-02. Assuming without deciding that Tonia's statements to Bryson were "testimonial," we conclude appellant was not harmed by their admission. In the case of constitutional error, we must reverse a judgment of conviction and remand for a new trial unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App.P. 44.2(a); see also Muttoni v. State, 25 S.W.3d at 308. If, without the erroneously admitted evidence, the record contains overwhelming evidence of guilt, then the error is harmless beyond a reasonable doubt. Muttoni, 25 S.W.3d at 308. The record in this case shows M.B. claimed appellant took her to his house and raped her repeatedly. M.B. was able to describe the inside of appellant's house and identify appellant. DNA taken from M.B. via the rape kit indicated the probability of a match between appellant and the DNA as one in 25.9 trillion, more than the population of the world. Without considering Tonia's testimony for any purpose, the evidence overwhelmingly showed appellant's guilt. Under these circumstances, any error in admitting Tonia's statements was harmless beyond a reasonable doubt. Id. We overrule appellant's first point of error. In his second point of error, appellant argues the trial court erred in refusing to grant his and his counsel's motions for counsel to withdraw. A defendant does not have the right to his own choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court. McKinny v. State, 76 S.W.3d 463, 477 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A trial court is under no duty to search until it finds an attorney agreeable to defendant. Perry v. State, 464 S.W.2d 660, 664 (Tex.Crim.App. 1971); McKinny, 76 S.W.3d at 477. Personal animosity, without more, does not mandate withdrawal of counsel. Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). Appellant argues the "multiple grievances" he filed against his appointed trial counsel, along with the animosity between appellant and his trial counsel, rendered his trial counsel ineffective. The record shows appellant did not agree with the way his trial counsel conducted his defense. However, appellant has failed to include a copy of the grievance in the record or provide any information regarding the nature of the complaints set forth therein. A request for change of counsel cannot be made in a criminal proceeding so as to obstruct orderly procedure in the courts or to interfere with the fair administration of justice. Culverhouse v. State 755 S.W.2d 856, 861 (Tex.Crim.App. 1988). We conclude appellant "has shown the mere possibility of a conflict of interest, and such possibility, without more, is not sufficient to impugn his conviction." McKinny, 76 S.W.3d at 478. We overrule appellant's second point of error. In his third point of error, appellant argues he received ineffective assistance of counsel. Specifically, appellant complains his trial counsel was ineffective in (1) failing to obtain the presence of witnesses appellant requested; (2) failing to continue objecting to evidence of Tonia's statements; (3) failing to admit evidence of Tonia's affidavit of non-prosecution; (4) Failing to object to questions at punishment concerning appellant's previous arrests; (5) failing to request a limiting instruction at punishment; and (6) failing to object to the State's improper jury argument. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. We have already concluded that appellant's disagreements with his trial counsel did not render his trial counsel ineffective. The record in this case is silent as to trial counsel's strategy in failing to take the actions of which appellant complains. Therefore, appellant has failed to rebut the presumption that this was a reasonable decision. See id. at 814. Further, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. As we have also previously concluded, the evidence against appellant was overwhelming. Nevertheless, appellant's trial counsel succeeded in proving that appellant was guilty of a lesser included offense and not the charged offense. Under these circumstances, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's third point of error. We affirm the trial court's judgment.