Opinion
No. 05-16-00360-CR
06-09-2017
SPENCER ASHBY SALE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F10-45686-Q
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Myers
A jury convicted appellant Spencer Ashby Sale of indecency with a child by contact and assessed punishment at eight years' imprisonment. In three issues, appellant contends the trial court abused its discretion by ruling that certain testimony could not be admitted and that trial counsel rendered ineffective assistance. We affirm.
Sentence in this case was imposed on April 4, 2014, but a notice of appeal was not initially filed. Appellant was granted an out-of-time appeal by the Texas Court of Criminal Appeals after filing an article 11.07 writ. See Ex parte Sale, No. WR-84,001-01, 2015 WL 6746465 (Tex. Crim. App. Nov. 4, 2015). The court of criminal appeals ordered appellant to file a notice of appeal within thirty days from the date of the issuance of the mandate. Id. Appellant timely filed his notice of appeal on December 29, 2015.
DISCUSSION
Evidentiary Ruling
In his first issue, appellant argues that the trial court erred when it ruled that he could not admit testimony that was relevant to rebutting the complainant's allegations. More specifically, appellant alleges the trial court abused its discretion when it ruled that his daughter, E.S., who was seventeen years old at the time of trial, could not specifically testify about whether the complainant, R.G., appellant's stepdaughter, who was also seventeen years of age at trial, was telling the truth.
Appellant was indicted for the offense of continuous sexual abuse of a child under the age of fourteen. See TEX. PENAL CODE ANN. § 21.02. The indictment alleged contact between the defendant's hand and the complainant's genitals, penetration of the complainant's female sexual organ by the defendant's finger, contact between the mouth of the defendant and the female sexual organ of the complainant, contact and penetration of the mouth of the complainant by the sexual organ of the defendant, and contact between the hand of the complainant and the sexual organ of the defendant. R.G. testified that appellant sexually abused her starting from when she was four years of age. When R.G. was twelve or thirteen years old, she told a friend, Michelle, about the abuse. By this time, R.G.'s mother and appellant were separated (they later divorced). In June of 2010, R.G. told her mother, who contacted Child Protective Services (CPS). Police were notified that same month and the indictment was filed on September 13, 2010. The jury ultimately convicted appellant of the lesser-included offense of indecency with a child by contact. See id. § 21.11.
Appellant testified on his own behalf and denied sexually abusing R.G. Appellant, his mother, and E.S. all testified that, in their opinion, R.G. had a reputation for untruthfulness. After E.S. testified that R.G. had a reputation for untruthfulness, the following took place:
Q. [DEFENSE COUNSEL]: The—can you tell the ladies and gentlemen about a discussion that you have had with [R.G.] specifically about whether or not she's telling the truth.
[PROSECUTOR]: Your Honor, I object to this as hearsay. It's improper and against the rules of evidence.
[DEFENSE COUNSEL]: Can we approach?
THE COURT: Remove the jury, please.
THE BAILIFF: All rise.
[Jury left the courtroom.]
THE COURT: You may be seated. Let the record reflect the jury is not present in the courtroom. Go ahead and restate your question, please, out of the jury's presence.
[DEFENSE COUNSEL]: I'm sorry, Judge?
THE COURT: Restate your question out of the jury's presence.
[DEFENSE COUNSEL]: Oh, out of the jury's presence, yes.
EXAMINATION
BY [DEFENSE COUNSEL]:
Q. [E.S.], did Ms—what did [R.G.] tell you specifically about whether or not she's telling the truth in this case and when did she tell you that?
A. Well, we had a phone call. I can't recall how many years ago but not—obviously during this case, and she told me that she has lied her whole life and that this—that she is the one who charged my dad with whatever the specifics were.
Q. Did she say she was lying about this, that she's a liar?
A. She told me that she's a liar.
[DEFENSE COUNSEL]: That's the question and answer, Judge.
[PROSECUTOR]: Your Honor, I don't believe this rises to the level of this witness being able to say that the victim in this case, [R.G.], said she lied about the offenses that have been alleged.
[DEFENSE COUNSEL]: Let me ask another question then, Judge.
THE COURT: You may.
[DEFENSE COUNSEL] Ma'am, the conversation you recall, the conversation that was during the pendency of this case, you contacted her?
A. Yes, sir.
Q. And you wanted to know what?
A. I wanted to know why she was doing this to us.
Q. And when she said that she is a liar, were you specifically talking about—or was she specifically answering questions about what she said your dad did?
A. No, sir.
Q. What was she asking questions about?
A. Well, I was asking her questions about [why] she would do this and she just said that she has lied her whole life.
[DEFENSE COUNSEL]: That's the next question and answer, Judge.
THE COURT: Ms. [PROSECUTOR]?
[PROSECUTOR]: Again Your Honor, I don't believe that this rises to the level of this witness being able to definitively say the victim in the case specifically told her that she lied about the allegations.
THE COURT: Sustained at this time.
[DEFENSE COUNSEL]: And that would be our bill for purposes of—well, to make the bill complete, we would request that the questions and answers that the Court has heard outside the presence of the jury be allowed before the jury.
THE COURT: Your request is denied and I will consider this as a bill of exception.
An appellate court reviews 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); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). The reviewing court should not reverse a trial judge whose ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 101, Montgomery, 819 S.W.2d at 391. We will uphold the trial court's decision if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
The defense wanted to present testimony of R.G.'s untruthfulness, based on a specific statement she had purportedly made to her stepsister E.S. Appellant argues that E.S.'s testimony about what R.G. allegedly told her was admissible because he was entitled to impeach R.G. with an inconsistent statement. Regarding prior inconsistent statements made by a witness, rule 613(a) provides in part:
(a) Witness's Prior Inconsistent Statement.
(1) Foundation Requirement. When examining a witness about the witness's prior inconsistent statement—whether oral or written—a party must first tell the witness:TEX. R. EVID. 613.
(A) the contents of the statement;
(B) the time and place of the statement; and
(C) the person to whom the witness made the statement.
* * * *
(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.
(4) Extrinsic Evidence. Extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.
In this case, the predicate for impeaching R.G. with a prior inconsistent statement was not established. When R.G. testified, she was never asked whether she told E.S. that she was a liar and she had lied her whole life. R.G. was, thus, never given the opportunity to unequivocally admit or deny that she said this to E.S. If she had been asked and denied saying this to E.S., the defense could have asked E.S. if R.G. had said this to her and E.S. could have testified that R.G. told E.S. that she was a liar and had lied her whole life. Because appellant did not ask R.G. if she had made these statements to E.S., the predicate was not established, and the trial court did not abuse its discretion by sustaining the State's objection. See, e.g., Madry v. State, 200 S.W.3d 766, 769-70 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (defendant did not comply with rule 613 in that he did not confront the witness with a prior inconsistent statement, nor did he summarize contents of any prior inconsistent statements that she allegedly made that would have been admissible under rule 613); Gamez v. State, No. 04-11-00489-CR, 2012 WL 3329200, at *3 (Tex. App.—San Antonio Aug. 15, 2012, no pet.) (mem. op., not designated for publication) (trial court did not abuse its discretion because defendant failed to lay the proper predicate required by rule 613 to allow extrinsic evidence of alleged prior inconsistent statement).
Nor does rule 608 of the rules of evidence, which governs admission of evidence of a witness's character for truthfulness or untruthfulness, provide an alternative basis for admitting E.S.'s testimony. Rule 608 provides as follows
(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.TEX. R. EVID. 608.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack or support the witness's character for truthfulness.
Rule 608(b) expressly bars impeaching a witness's general character for truthfulness with specific acts of conduct other than conviction of a crime as provided in rule 609. Dixon v. State, 2 S.W.2d 263, 271 (Tex. Crim. App. 1999). Once a witness has testified, evidence pertaining to the witness's bad reputation for truthfulness may be introduced to attack that witness's credibility under rule 608(a). Clark v. State, No. 05-07-00127-CR, 2007 WL 4239266, at *7 (Tex. App.—Dallas Dec. 4, 2007, pet. ref'd) (mem. op., not designated for publication). A reputation witness's testimony cannot be based upon specific acts of conduct of the witness whose credibility is being attacked, but rather must be based upon a synthesis of "observations and discussions which results in a conclusion as to the individual's reputation." Id. In accordance with rule 608(a), appellant, his mother, and E.S. all testified that, in their opinion, R.G. had a reputation for untruthfulness. But under rule 608(b), specific instances of conduct to attack the witness's character for truthfulness are not allowed. See TEX. R. EVID. 608(b). Therefore, E.S.'s testimony about what R.G. told her about her conduct, i.e., "she has lied her whole life," was not admissible under this rule.
Appellant also argues the evidence he attempted to introduce was not merely reputation or opinion evidence—it was substantive evidence that the complainant admitted, during a discussion regarding her allegations against appellant, that she is a liar, "perhaps a pathological liar." Appellant analogizes to Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009) in support of his argument the evidence was admissible. In that case, however, the Texas Court of Criminal Appeals held that the trial court should have admitted evidence that the child-complainant in that aggravated sexual assault prosecution made threats to falsely accuse two neighbors of sexual molestation. See id. at 38. The court held that such evidence supported the defensive theory that the complainant's motive in accusing the defendant of sexual molestation was "rage and anger" when he was thwarted. See id. at 42. The evidence proffered in this case—that R.G. said she was a liar and had lied her whole life—did not include any evidence the complainant had falsely accused anyone of sexual molestation or that she had threatened to do so. The facts in Billodeau are materially different from those in the present case. Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009), which is cited by appellant, is distinguishable for the same reason. See id. at 568-69 (holding it was error to exclude evidence that alleged victim, on a prior occasion, falsely accused others of rape to conceal she had a consensual sexual relationship with her boyfriend, a boy of whom her father did not approve, and her past sexual history was, thus, logically connected to her motive to falsely accuse her father).
Alternatively, even if one assumes the trial court abused its discretion by excluding the disputed evidence, appellant was not harmed. Pursuant to rule 44.2(b), "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). Generally, the erroneous admission or exclusion of evidence is non-constitutional error governed by rule 44.2(b). See Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005); Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex. Crim. App. 2003). When evaluating harm under rule 44.2(b), we "need only determine whether or not the error affected a substantial right of the defendant." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946). Substantial rights are not affected by the erroneous admission or exclusion of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We must consider the entire record, including testimony, evidence, voir dire, closing arguments, and jury instructions to determine whether the jury was affected. Id. at 355-56; see also Bagheri, 119 S.W.3d at 763. Other factors include the nature of the evidence supporting the verdict, the character of the alleged error, and how the alleged error may be considered in connection with other evidence in the case. Bagheri, 119 S.W.3d at 763
The record shows that R.G.'s character for truthfulness or untruthfulness was before the jury when appellant, his mother, and E.S. all testified that, in their opinion, R.G. had a reputation for untruthfulness. Additionally, the State directs our attention to the following portion of E.S.'s testimony:
Q. [DEFENSE COUNSEL:] Okay. Now describe your relationship in your own words with [R.G.]. Y'all were about six months difference between the two of you.The prosecutor's general objection was sustained, but she did not ask for an instruction to disregard E.S.'s statement that R.G. "would lie." Thus, the jury was entitled to consider it. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (only a motion to strike removes evidence "from the body of evidence the jury is allowed to consider"); Heidelberg v. State, 36 S.W.3d 668, 672-73, 674 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (same). The record also shows E.S. concluded by testifying that, based on her experience of living with R.G., the complainant was not truthful. Moreover, the jury in this case had to decide whether they believed R.G. was truthful or untruthful, and they had to determine the credibility of the complainant as well as the credibility of all the witnesses. By finding appellant not guilty of continuous sexual assault of a child and aggravated sexual assault, but guilty of the lesser-included offense of indecency with a child by contact, the jury presumably disbelieved portions of both the complainant's and appellant's testimony. Under the facts of this case, even if one assumes the trial court abused its discretion by not allowing E.S.'s disputed testimony, appellant was not harmed because the issue of R.G.'s truthfulness or untruthfulness was before the jury. We overrule appellant's first issue.
A. Well, we shares [sic] a room for a while so we were close and—I mean, we would fight a lot because she would lie and—
[PROSECUTOR:] Objection, Your Honor.
THE COURT: Sustained.
Ineffective Assistance of Counsel
In his second and third issues, appellant contends his trial counsel rendered ineffective assistance because he failed to object to the testimony of an investigating officer who expressed an improper opinion that the complainant was truthful and an improper opinion that appellant was guilty. The State responds that appellant has failed to provide a sufficient record to meet his burden and that, furthermore, he failed to meet his burden under the first and second prongs of Strickland v. Washington, 466 U.S. 668 (1984).
Appellant's second and third issues are based on the testimony of Richardson police officer Adam Perry, assigned to the CAPERS or the crimes against persons unit that investigates child sexual abuse cases, among other matters. Perry testified that some of his duties involved investigating child abuse cases, and that he had investigated hundreds of such cases. Perry explained that he became involved in the case after he was contacted by a CPS case worker on June 23, 2010, who told him they had been working on a case involving "a 13-year-old outcry of sexual abuse by a stepfather." He viewed R.G's forensic interview in which she made a delayed outcry against appellant, i.e., one that "didn't happen within a short enough time period for us to collect physical evidence," and he testified that, in a case where at least a year had passed since the sexual activity took place, one would not expect to find any physical evidence of abuse. Then the following testimony occurred:
[PROSECUTOR]: So when you have a case like this, how do you investigate it? What else do you do?After further describing his investigation of the case, Officer Perry testified as follows:
A. Well, what we try to do is we try to—at that point you've got to use some common sense. We have to ask ourselves, does the victim have any reason to make this up, is there anything they're going to gain from it, did they have access to the child, is what the child is saying—is the allegation that the child is making reasonable, can the perpetrator or can the suspect accomplish that or can they perform those acts that the victim is saying happened to them.
More importantly that we look for when we don't have physical evidence is what does the victim have to gain from it. In this particular case, I didn't feel like she had anything to gain from it.
Q. Ultimately you filed a case?Appellant complains that defense counsel was ineffective because he failed to object to the prosecutor's question and Perry's answer, and that the testimony amounted to an improper opinion that R.G. was being truthful.
A. Correct.
Q. And here we are?
A. Yes, ma'am.
Appellant's third issue is based on what occurred thereafter, when defense counsel began his cross-examination of Officer Perry. The relevant portion of the record is as follows:
Q. The standard for an arrest is probable cause; is that correct?
A. Yes, sir.Appellant contends this portion of Perry's testimony includes an improper opinion that appellant was guilty of the charged offense, and that defense counsel should have objected to it.
Q. And the standard for here is beyond a reasonable doubt; correct?
A. I'm sorry, sir?
Q. The standard for a jury is beyond a reasonable doubt; correct?
A. Yes, sir.
Q. Would you agree with me, Officer, after all the years you've had working these cases protecting the public, that there can be a larger gap between beyond a reasonable doubt and probable cause?
[PROSECUTOR]: Objection. That calls for a legal conclusion.
THE COURT: Sustained.
Q. [DEFENSE COUNSEL] Are you the person that—are you the individual as a police officer that must know the law in order to enforce the law in the street?
A. Yes, sir.
Q. You must know if an offense has occurred or you're going to be arresting people for doing things that are not illegal; right?
A. Yes, sir.
Q. So are you aware of what probable cause is?
A. Yes.
Q. And what is probable cause?
A. Probable cause is a reasonableness that an offense has been—let me try this again. Probable cause is a reasonableness that an offense has occurred, will occur or is occurring.
Q. Did you interview Mr. Sale?
A. Yes.
Q. Mr. Sale said, "I'm not guilty, didn't do it"; right?
A. He said he didn't do it.
To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006).
Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). "An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697. Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the rare case in which trial counsel's ineffectiveness is apparent from the record, an appellate court may address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143. However, the record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law and no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of counsel's subjective reasoning. Id.
In this case, appellant did not file a motion for new trial, and the record is silent as to why defense counsel did not object to Officer Perry's testimony. Counsel may have believed that Perry's comments regarding how he investigated the case, and the decision to file a case against appellant, were not the equivalent of expressing an opinion that R.G. was truthful, and that any objection along those lines would have been pointless or futile. Counsel is not ineffective for failing to make futile objections or request instructions that are not required. Wood v. State, 4 S.W.3d 85, 91 (Tex. App.—Fort Worth 1999, pet. ref'd); see Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (counsel was not ineffective for failing to object to admissible testimony); Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd) (counsel not ineffective for not making frivolous objection); see also Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (trial counsel not ineffective for failing to make pointless or futile objections). Counsel may have also concluded Perry was merely stating a procedural fact, not an opinion, when he testified that he ultimately filed a case, and that any objection to such testimony would have been similarly pointless or futile. Counsel may have likewise concluded there was no basis for arguing Perry had expressed an opinion that appellant was guilty of the charged offense, and that his testimony did not supplant the presumption of innocence or override the jury's role in determining whether the State had met its burden of proof. During voir dire, the jury was told the State had the burden of proof beyond a reasonable doubt and that appellant was presumed to be innocent, and the jury charge also instructed the jurors regarding the presumption of innocence and the State's burden of proof. It is presumed that the jury follows the trial court's instructions in the manner presented. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). It is also possible counsel may have determined that any objection to Officer Perry's testimony would have simply brought further attention to it. See Ex parte Saenz, 491 S.W.3d 819, 828 (Tex. Crim. App. 2016); West v. State, 474 S.W.3d 785, 792 (Houston [14th Dist.] 2014, no pet.); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The record does not provide any insight into defense counsel's reasoning. Based on this silent record, we cannot conclude defense counsel's performance was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392; Garcia, 57 S.W.3d at 440. We overrule appellant's second and third issues.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. 47
160360F.U05
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F10-45686-Q.
Opinion delivered by Justice Myers. Justices Bridges and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 9th day of June, 2017.