Pietrzak v. State

Full title: RAFAL TED PIETRZAK, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 23, 2003

No. 05-01-01687-CR (Tex. App. Jan. 23, 2003)

Opinion

No. 05-01-01687-CR.

Opinion Filed January 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80392-97. AFFIRM.

Before Justices JAMES, WRIGHT, and RICHTER.

OPINION

Opinion By Justice RICHTER

A jury convicted Rafal Ted Pietrzak of aggravated sexual assault of a child younger than fourteen years of age and assessed punishment at thirty years' imprisonment and a $10,000 fine. On appeal, appellant raises ten issues complaining of: (a) denial of due process of law because the jury charge and verdict are missing; (b) legal and factual insufficiency of the evidence to support the conviction; (c) error in the admission of certain evidence and in failing to submit a jury instruction on the defense of medical treatment; (d) error in denying his motion to suppress his videotaped confession because the confession was involuntary; (e) ineffective assistance of counsel; and (f) impermissible comments on the weight of the evidence by the trial judge. We affirm.

Background

On November 20, 1996, five-year old D.R. was examined in the emergency room of Children's Medical Center after being referred by her treating doctor. At the time, D.R. was complaining of abdominal pain, had diarrhea, had been vomiting, and had been bleeding and passing stool through her vagina. According to D.R.'s mother, D.R.'s symptoms began the day before. Based on a cursory examination and x-rays, the emergency room doctor believed D.R. might have a congenital disorder of the anus or a tumor, and ordered a biopsy for the following week. Before the biopsy was performed, however, doctors examined D.R. again and realized that what initially was thought to be a tumor was "essentially an area of swelling and inflammation from [genital] trauma." According to the doctors, D.R. had suffered a tear to the anal sphincter and a tear to the upper part of the vagina. Although neither D.R. nor D.R.'s mother offered an explanation at the time for the injuries, the doctors suspected sexual abuse and dated the injuries one to three weeks old. The doctors were of the opinion that the injuries were caused by an "object" at least four to five inches long and were consistent with penetration by a grown man's erect penis or finger, although they could not say specifically how the injuries occurred. The doctors contacted the police who "narrowed the suspects down" to appellant — D.R.'s "daddy"¹ and the mother's live-in boyfriend. Appellant was arrested after providing the following written statement while being interviewed by Detective Terence Holway, an investigating officer assigned to the case:

[On November 19, 1996 I was bathing D.R. when she] told me she had to go poopoo. Before I had a chance to sit her on the toilette [sic] she pooped in the bathtub . . . I decided to wash my daughter off . . . I washed her bottom (vagina then but hole [sic] — one at the [sic] time) outside then inside by using my fingers. At some point my daughter said "Ouch! It hurts" — I stopped right then, apologised [sic] to her rinsed her buttom [sic] off from soap. When I reached over for towel I saw a little bit of blood running down her leg. . . .

At trial, the State called Holway as one of its witnesses. Holway testified that, during the course of his investigation, he received various other explanations for D.R.'s injuries. Among those were that a three-year old child had injured D.R. with a spoon; D.R. "was hurt on a bicycle;" D.R. was hurt accidentally with a stick; a seven-year old boy cared for by D.R.'s babysitter had injured D.R.; a group of boys had taken D.R. into an empty apartment; the maintenance man at the apartment complex where D.R. lived had injured D.R.; and D.R.'s older sister had injured D.R. with her fingers. Holway did not find any evidence to substantiate these explanations and stated all the evidence he found tended to indicate appellant was the perpetrator. Holway also noted that following appellant's confession, appellant wrote D.R. a letter informing her he had admitted to the police that "when [he] washed [her], [he] washed a little too hard," that he "did not mean to do this . . . [and] just wanted to clean [her] good," and that he was "very sorry for what [he] did." The State also called the outcry witness Melonie Findley, a Children's Protective Services' worker; Carolyn Anderson, a counselor at D.R.'s elementary school; and D.R. herself. Findley testified that during her interview with D.R., D.R stated that appellant "inserted his fingers into her coo-coo [vagina] while bathing her . . . that it hurt and then she noticed [blood]." D.R. also told her that appellant "was just cleaning her out." According to Findley, D.R. denied anybody else ever touching her. Anderson testified similarly to Findley but also noted that D.R. mentioned appellant had done this to her more than once and had also used a pencil and another object. On the stand, D.R. denied appellant hurt her. Testifying for the defense were two of appellant's family members and a psychologist who had interviewed appellant and watched the videotape of appellant's interview with Holway. The family members testified appellant had lived with them for approximately four years before moving in with D.R.'s mother. Appellant had watched their grandchildren, as well as the children of a neighbor, and no problems had ever been reported. The family members also testified they had observed appellant with D.R. and D.R.'s sister and it was clear he adored them and they him. The psychologist, William Hester, opined that, based on his interview with appellant and his review of the videotape, appellant was under a "great deal of stress" and pressure at the time he gave the statement to Holway. Hester also testified he interviewed D.R. The interview was videotaped and played to the jury. During the interview, D.R. offered various explanations for the injury, none of them involving appellant. When questioned about the various explanations, D.R. admitted they were not true but explained she said what she said only because she wanted her "daddy" to come home. When questioned whether appellant had ever touched her, D.R. stated he had but only "when he was cleaning her." As stated, the jury found appellant guilty and assessed punishment at thirty years' imprisonment and a $10,000 fine.

Legal and Factual Sufficiency

In his second and third issues, appellant asserts the evidence is legally insufficient to show he acted intentionally and knowingly. In his fourth and fifth issues, appellant asserts the evidence is legally and factually insufficient to show he penetrated D.R.'s vagina with his fingers. We reject appellant's contentions. In reviewing a legal sufficiency challenge, we view the evidence, whether properly or improperly admitted, in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim. App. 1999). In conducting a factual sufficiency challenge, we determine whether a neutral review of all the evidence viewed by the fact finder establishes the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). In both sufficiency reviews, the trier of fact may draw reasonable inferences from the evidence before it and is the exclusive judge of the witnesses' credibility and of the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). Likewise, resolution of conflicts in the evidence is within the fact finder's exclusive province. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim. App. 1997). Based on the allegations in the indictment in this case, to obtain a conviction, the State had to prove appellant intentionally and knowingly caused the penetration of the female sexual organ of D.R., a child younger than fourteen years of age, by means of his finger or soap. See Tex. Pen. Code Ann. § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2003). To establish intent, the State had to show it was appellant's conscious objective or desire to engage in the conduct; to establish knowledge, the State had to show appellant was aware of the nature of his conduct or that his conduct was reasonably certain to cause the result. Id. § 6.03(a), (b) (Vernon 1994). The jury was free to infer both knowledge and intent from any facts tending to prove their existence, including the acts, words, and conduct of appellant, the method used to commit the crime, and the nature of the wounds inflicted on the victim. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. [Panel Op.] 1982); Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App. [Panel Op.] 1981). In arguing the evidence is legally insufficient to show he acted intentionally and knowingly, appellant relies on the hospital doctors' statements that they did not know how the injuries occurred, D.R.'s trial testimony that appellant "had no contact with her," and appellant's statement to Holway that he had "touched [D.R.] because he was giving her a bath based on her condition." However, in making this argument, appellant selects only certain portions of the evidence and ignores the applicable standard of review which requires us to "view the evidence in the light most favorable to the verdict." Applying this standard, we conclude the evidence was legally sufficient to show intent and knowledge. Both the outcry witness and the school counselor testified D.R. had told them that appellant had "inserted his fingers in her coo-coo" and that "it hurt." The trauma to D.R.'s genital area was severe and according to the doctors was consistent with penetration by a grown man's finger. Moreover, in his written statement, appellant admitted washing D.R.'s "bottom (vagina then but hole [sic] — one at the [sic] time) outside then inside by using [his] fingers." Appellant subsequently wrote that he had "washed a little too hard." From this evidence, the jury could have inferred and found beyond a reasonable doubt that appellant acted intentionally and knowingly. We resolve appellant's second and third issues against him. We also resolve appellant's fourth and fifth issues against him. In arguing these issues, that the evidence is legally and factually insufficient to show he penetrated D.R.'s vagina with his fingers, appellant again relies on the doctors' statements that they did not know how the injuries occurred. Appellant also notes D.R. failed to testify on the stand that appellant placed his fingers in her vagina, testified appellant did not harm her, and offered various explanations for how the injuries occurred. Finally, appellant contends the videotaped interview with Holway did not show appellant in fact placed his finger in D.R.'s vagina. Again, however, in challenging the legal sufficiency of the evidence, appellant fails to apply the proper standard. Viewing the evidence in the light most favorable to the verdict, the record reflects appellant "bathed [D.R.'s] bottom (vagina . . .) outside then inside by using [his] fingers." Additionally, although D.R. did not testify on the stand that appellant penetrated her with his fingers, the outcry witness testified that D.R. reported to her that appellant had "placed his fingers in her coo-coo." D.R. later repeated this to the school counselor. From this evidence, a rational jury could find beyond a reasonable doubt that appellant penetrated D.R.'s vagina with his fingers. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990) (sexual assault victim need not testify as to penetration); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd) (child victim's outcry statement alone can be sufficient to support a conviction for aggravated sexual assault). Similarly, reviewing the evidence in a neutral light, we conclude the proof of guilt was neither so obviously weak as to undermine confidence in the jury's verdict nor greatly outweighed by contrary proof. Although D.R. did offer various explanations for the injuries, she also acknowledged they were not true. Further, although D.R. testified on the stand that appellant did not hurt her, the jury was free to disregard this testimony and resolve any conflicts in the evidence in favor of the State. Appellant's arguments lack merit.

Missing Charge and Verdict

In his first issue, appellant asserts he has been denied due process of law because the court's charge to the jury on guilt/innocence and the verdict form are missing from the clerk's record. Appellant notes he requested the charge and verdict form twice and, in response, the district court clerk swore in an affidavit that neither "was ever given to the clerk to file in the court's file." Appellant then states:

the record on appeal does not have any indication that a jury was properly charged and found [a]ppellant guilty for the crimes he has, in fact, been convicted. While the trial court allegedly read something to the jury prior to sending them out for deliberation, there is no evidence that the document, if there was one, was ever given to the jury. There is no evidence that the jury returned a verdict based on what the trial court read. As the jury was not polled after their deliberation had concluded, there is no evidence as to how many, if any, of the jurors found [a]ppellant guilty. Again, after the jury came back in, the trial court allegedly read something and then found [a]ppellant guilty.

Citing Saragosa v. State, 46 S.W. 250 (Tex.Crim.App. 1898) and Allen v. State, 899 S.W.2d 296 (Tex.App.-Houston [14th Dist.] 1995), pet. dism'd, 945 S.W.2d 829 (Tex.Crim.App. 1997), appellant contends the charge and verdict are necessary for appellate review, and because they are missing,² reversal is required.³ Although we do not dispute the court's charge and verdict must be included in the record, see Tex. R. App. P. 34.5(a), we reject appellant's contention that reversal is required in this case. As appellant himself makes reference, and the State responds in its brief, the reporter's record reflects the trial judge read the charge to the jury.⁴ The record reflects the following:

[THE COURT:] Ladies and gentlemen, what I'm going to do now is read to you the charge of the Court . . . You have copies of what I'm going to read, but you're only going to take this one back because that's the signed one and the one your presiding juror has to sign.

The trial judge then read the charge, which was transcribed in its entirety by the court reporter. The charge included all the pertinent definitions and instructions, the State's burden, and the jury's responsibilities. The charge also included the necessary application paragraphs, which tracked the language used in the indictment. After reading the entire charge, the trial judge stated:

. . . it's signed by me, Mark Tolle, presiding judge sitting by assignment. It doesn't say it in here, but I will say it again, your verdict must be unanimous, of course . . . [Y]ou have two verdict forms. One provides for finding the defendant guilty as charged in the indictment; the other for finding the defendant not guilty. Whichever verdict form you think is the correct one to sign, the one all of you agree upon, the presiding juror will sign it and will write his name under the form . . .

The trial judge then allowed the State and defendant to close and the jury retired to deliberate. When the jury returned, the following transpired:

THE COURT: . . . Let the record reflect all parties of trial are present and the jury is seated . . . [H]as the jury reached a verdict?

PRESIDING JUROR: Yes, sir.

THE COURT: We, the jury, find the defendant guilty of the offense of aggravated sexual assault as charged in the indictment. Signed . . . presiding juror. If that is your verdict, please so signify by raising your right hands.

(Jurors respond)

THE COURT: Let the record reflect all hands are raised.

We conclude this record sufficiently shows the jury was properly charged, the jury received the charge, and unanimously found appellant guilty "for the crimes he has been convicted" — as alleged in the indictment and tracked in the charge.⁵ We resolve appellant's first issue against him.

Evidentiary Issue

In his sixth issue, appellant complains the trial court erred in allowing the school counselor to testify concerning D.R.'s statements of the assault because the State did not timely inform him about the statement and the court failed to conduct a hearing in accordance with article 38.072 of the code of criminal procedure. We disagree. To preserve error for appellate review, a party must make a timely, specific objection and obtain a ruling. Tex. R. App. P. 33.1(a)(1); Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim. App. 2002). Additionally, to preserve error with respect to a court's failure to conduct an article 38.072 hearing, the appellant must have actually requested the hearing. Cates v. State, 72 S.W.3d 681, 698 (Tex.App.-Tyler 2001, no pet.). In this case, appellant did neither. Accordingly, any complaint is waived. We resolve appellant's sixth issue against him.

Voluntariness of Confession

In his tenth issue, appellant complains the trial court erred in denying his pretrial motion to suppress his videotaped confession because the confession was involuntary. Appellant did not call any witnesses at the hearing on the motion, but relied instead on the videotape itself. In his brief, appellant notes the interview was conducted by three detectives over a period of almost four hours and he was arrested immediately after the interview.⁶ Appellant contends these actions amounted to "coercion . . . and improper influences" and resulted in a denial of due process.⁷ We disagree. The determination of whether a statement is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). When reviewing a trial court's ruling on a motion to suppress, we must afford almost total deference to the court's application of law to fact questions which turn upon an evaluation of the credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. App. 1997). However, when, as here, the trial court's determination of mixed questions of law and fact do not turn upon an evaluation of the credibility and demeanor of the witnesses, we determine the issue independently, or de novo. Id. Involuntary confessions offend due process when they flow from the improper conduct of law enforcement officials. Colorado v. Connelly, 479 U.S. 157, 167 (1986); Gomes v. State, 9 S.W.3d 373, 377 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). In determining whether a given confession was the result of improper official conduct, we review the totality of the circumstances, considering such factors as the length of detention and interrogation, the presence or absence of physical brutality, the location and hour of the questioning, and whether the defendant was permitted access to his family or an attorney. Gallegos v. Colorado, 370 U.S. 49, 51-52 (1962); State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999); Gomes, 9 S.W.3d at 377. Using the appropriate standard, we conclude the court did not err in denying appellant's motion to suppress. The record reflects appellant himself drove to the station for the interview at approximately 7:00 at night. Although the interview lasted close to four hours and was conducted by various officers, appellant was told he could terminate the interview if he chose and was offered the opportunity to consult with an attorney. Additionally, appellant was offered and given both coffee and a soft drink and, at his request, was allowed immediate access to the restroom. The record also reflects appellant specifically stated he "want[ed] to talk" to the officers and took his time to write his statement. Although appellant maintains there was coercion, the record does not reflect the officers did anything that could be remotely characterized as coercive. There is no indication of any threats or promises nor trickery or deception. Neither is there an indication of any violence. Appellant's argument lacks merit. Accordingly, we resolve his tenth issue against him.

Ineffective Assistance of Counsel

In his seventh issue, appellant asserts his trial counsel was ineffective. Specifically, he complains of his counsel's unkept promise to the jury during opening statements that doctors would testify that D.R.'s condition required a "thorough cleaning for medical reasons" and that appellant himself would testify that he did not molest D.R. Because the State pointed out to the jury in closing that appellant had presented no evidence that he was giving D.R. medical care, appellant asserts he was harmed. We reject appellant's contention. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)), cert. denied, 528 U.S. 1081 (2000). We look to the totality of the representation to determine whether counsel provided effective assistance. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985); Melton v. State, 987 S.W.2d 72, 76 (Tex.App.-Dallas 1998, no pet.). We strongly presume counsel's competence and do not judge counsel's trial decisions in hindsight. Melton, 987 S.W.2d at 76; Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Weeks, 894 S.W.2d at 391. Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence, see Moore, 694 S.W.2d at 531, and an allegation of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). Without the required showing of deficient performance or sufficient prejudice, the presumption of reasonable counsel will not be overcome. Id. In this case, the record is silent as to why appellant did not testify and contains no evidence of whether legitimate tactics were involved in that decision. When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Accordingly, to the extent appellant complains counsel was ineffective in telling the jury appellant would testify at trial, we resolve appellant's seventh issue against him. We also resolve appellant's seventh issue against him to the extent he complains counsel was ineffective in failing to obtain the promised medical testimony. The record on this issue reflects counsel subpoenaed two doctors who had treated D.R. and called them during appellant's case-in-chief. Neither appeared, although counsel did obtain their records and admitted them into evidence. Counsel was then given the opportunity to secure their presence through writs of attachment but he declined. In his closing argument, in response to the State's argument that appellant failed to show appellant's actions were consistent with proper medical care, counsel emphasized to the jury that appellant had no duty to present any evidence. Additionally, counsel noted the absent doctors' records were in evidence and "that's all [he] wanted." Counsel further stated he did not choose to obtain writs of attachment because the doctors would then be hostile and present unfavorable testimony to the defense. In his brief, appellant does not challenge this strategy but simply makes the global assertion that counsel was ineffective for failing to "present the type of evidence to the jury as he had stated was going to be presented during opening statements." Given the facts before us, we conclude appellant has failed to show deficient performance.

Jury Instruction on the Defense of Medical Treatment

In his eighth issue, appellant complains the court erred in denying his request for a jury instruction on the defense of medical care. Appellant argues he was entitled to the instruction because the evidence showed D.R. "was ill and [appellant] was giving her a bath and he was caring for the child." Appellant contends this evidence was sufficient to show his conduct consisted of medical care. In making his argument, however, appellant fails to cite to any portion of the record where such evidence appears. See Tex. R. App. P. 38.1(h). When an appellant fails to discuss the evidence supporting his claim, he presents nothing for review. Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000). We resolve appellant's eighth issue against him.

Trial Judge's Comments

In his ninth issue, appellant cites to several statements by the trial judge during trial and complains they constituted impermissible comments on the weight of the evidence. In response, the State notes appellant did not object to the statements at trial and has therefore waived error. We agree with the State. Unless the trial judge's comments constitute fundamental error, a defendant must object to preserve error. See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001); Nelson v. State, 661 S.W.2d 122, 123-24 (Tex.Crim.App. 1983). In this case, appellant failed to object and he does not complain the comments constituted fundamental error. Our review of them also fails to show the trial judge committed fundamental error. See Jasper, 61 S.W.3d at 420-22; see also Murchison v. State, ___ S.W.3d ___, 2002 WL1732142, at *20 (Tex.App.-Houston [14th Dist.] 2002, pet. filed) (noting comments must rise "to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury" to constitute fundamental error). Appellant has waived any error. We resolve appellant's ninth issue against him. Having resolved all of appellant's issues against him, we affirm the trial court's judgment.