No. 05-02-01601-CR
Opinion Filed October 29, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-72408-MN. AFFIRM
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice RICHTER.
A jury convicted Cedric Terrell of aggravated sexual assault of a child younger than fourteen years of age and assessed punishment at eight years imprisonment. In three points of error, appellant asserts his counsel was ineffective and the court erred in admitting certain evidence. We affirm.
Background
Appellant is the estranged husband of the complainant's mother. At trial, the complainant testified appellant began molesting her when she was approximately eleven years old. The abuse continued for about six years and escalated from fondling to penetration. The complainant testified appellant sexually assaulted her more than ten times, "whenever he had a chance," and she specifically recounted three sexual assaults that occurred before she turned fourteen. The complainant disclosed the assaults to her mother and aunt soon after they began, but neither reported it to the authorities. The complainant then waited until she was nineteen years old and a mother herself to report it again. The complainant testified she did not report it sooner because she was afraid of appellant. Over objection, the complainant explained she feared appellant because he was violent towards her mother. The complainant's testimony was corroborated in large part by her aunt, mother, and two siblings. Testifying in his defense, appellant denied any sexual contact with the complainant and denied being violent towards the complainant's mother. Ineffective Assistance of Counsel
In his first and third points of error, appellant asserts he was denied effective assistance of counsel. Specifically, in his first point, appellant contends his counsel was ineffective for failing to request that the State elect which of the sexual assaults reflected in the evidence it would rely upon for conviction. In his third point, appellant contends his counsel was ineffective for failing to conduct a "thorough pre-trial investigation." We reject appellant's contentions. 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)). To establish deficient performance, the appellant must show that counsel's actions did not result from strategic design and fell below "prevailing professional norms." Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Cardenas, 30 S.W.3d at 391. 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.). An allegation of ineffectiveness must be firmly founded in the record, and without the required showing of deficient performance or sufficient prejudice, the presumption of reasonable counsel will not be overcome. Thompson, 9 S.W.3d at 813. Generally, an appellant cannot overcome on direct appeal the presumption of reasonable counsel without a motion for new trial asserting an ineffective assistance of counsel claim and a hearing on that motion. See Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). In this case, appellant filed a timely motion for new trial, asserting counsel was ineffective for failing to conduct a "thorough" pre-trial investigation and failing to prepare properly for trial. Appellant developed a record concerning the perceived deficiencies in these two areas, including counsel's failure to (a) hire an investigator, (b) formally interview the complainant's mother before trial, (c) obtain telephone records showing the complainant's mother continued to call him after his arrest, and (d) obtain a police report documenting a complaint the complainant filed against her mother. However, although alleging in his first point of error that counsel was ineffective for failing to request that the State elect which sexual assault it would rely upon for conviction, appellant did not inquire as to why counsel failed to do so. Nor did appellant establish, despite alleging that counsel's deficiencies in the area of pre-trial investigation and trial preparation prejudiced his case, how those perceived deficiencies affected the outcome of the trial. In fact, in arguing in his third point of error that counsel was ineffective for failing to conduct a "thorough" pre-trial investigation, appellant simply speculates he was prejudiced without developing any argument. Because appellant has failed to show why counsel did not request an election and how the perceived deficiencies in counsel's pre-trial investigation prejudiced him, appellant has failed to overcome the presumption of reasonable counsel. Cardenas, 30 S.W.3d at 391-92 (counsel not deficient in failing to take certain actions where appellant failed to show how taking those actions would have affected the outcome of trial); Mayo v. State, 17 S.W.3d 291, 298 (Tex.App.-Fort Worth 2000, pet. ref'd) (counsel not deficient for failing to request an election where record silent as to his motivation); Brown v. State, 6 S.W.3d 571, 576-77 (Tex.App.-Tyler 1999, pet. ref'd) (same). Accordingly, we overrule appellant's first and third points of error. Admission of Evidence
In his second point of error, appellant contends the court erred in admitting the complainant's testimony that appellant was violent towards complainant's mother. Specifically, appellant maintains this testimony was irrelevant and more prejudicial than probative. Additionally, appellant maintains he was harmed by this testimony because it "had the effect of convincing [the jury] that [appellant] was just a 'criminal generally.'" We disagree. We review rulings on the admissibility of evidence under an abuse of discretion standard. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Because the erroneous admission of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by such evidence. See King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App. 1997); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record, including the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties' trial theories, the court's instructions to the jury, and the parties' closing arguments. Id. We will find the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365 (citation omitted). We need not address whether the admission of the complained-of testimony in this case was error because we conclude any error did not affect appellant's substantial rights. The evidence supporting the verdict includes the complainant's testimony, as well as the testimony of her siblings, aunt, and mother. As stated, the complainant testified specifically about three sexual assaults that occurred before she turned fourteen, and both her aunt and mother testified the complainant disclosed to them that appellant had sexually assaulted her. In addition, the complainant's siblings testified they were aware the appellant was molesting the complainant and one of them specifically recounted one occasion where she saw appellant's and the complainant's "legs hanging off the bed." The testimony concerning appellant's violent behavior towards the complainant's mother was minimal compared to the testimony concerning the assaults. Moreover, the record reflects the charge contained an instruction on the burden of proof and the limited purpose of the extraneous offense evidence. Although the record does reflect the State referenced appellant's violent behavior towards the complainant's mother on more than one occasion in its closing argument, at least two of the references were in response to appellant's closing argument questioning the complainant's veracity in light of the delay in reporting the assaults. Given the record before us, we conclude any error in the admission of the testimony concerning appellant's violent behavior towards the complainant's mother did not influence the jury, or had only a slight effect. We overrule appellant's second point of error. We affirm the trial court's judgment.