Opinion
No. 2-04-496-CR
Delivered: December 8, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 372nd District Court of Tarrant County.
Panel F: HOLMAN, WALKER, and McCOY, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Appellant Roderick Duane Thompson appeals his conviction for sexual assault. The grand jury indicted Appellant, charging him with aggravated sexual assault and the lesser included offense of sexual assault. After convicting him of the lesser included offense of sexual assault, the jury assessed his punishment at twelve years' confinement. The trial court sentenced Appellant accordingly. In a single point, Appellant complains that he was deprived of his constitutional right to effective assistance of counsel. We affirm.
FACTUAL BACKGROUND
During the summer of 2003, Monica Lynn Bernard began having gatherings at her apartment. The complainant, Luz Lopez, would attend these gatherings, as well as Ty Cornett, who lived at the apartment complex. Cornett brought Appellant to Bernard's apartment on approximately two or three occasions. Appellant told Lopez that he was interested in her on the first visit and asked her for her phone number, but she told Appellant that she was not interested in having a relationship at the time. Bernard testified that one day Appellant bragged about having a gun, stating that he could take care of things. Because she and Lopez felt uneasy around Appellant, she told Cornett not to bring Appellant to her apartment anymore. One night, Lopez was staying alone at Bernard's apartment while Bernard was away in New Mexico. At approximately 10:00 p.m., Cornett and Appellant knocked on the door, looking for Bernard. Lopez informed them that Bernard was not home, and refused to allow them into the apartment. Shortly thereafter, Lopez went to sleep in Bernard's bedroom, and she was awakened around 2:00 a.m. to the sound of knocking on the window. She looked through the blinds and saw Appellant standing outside. Appellant asked Lopez if he could use the phone to call someone to pick him up, so she handed him the phone through the door. Appellant then showed Lopez a gun and entered the apartment. He raped her, forcibly penetrating her vagina with his penis. After he finished, Appellant told Lopez not to tell anyone because he knew where she lived and he "would go crazy on [her]." Lopez reported the rape to the police and subsequently identified Appellant as her attacker.DISCUSSION
Appellant contends that he was deprived of his constitutional right to effective assistance of counsel because his trial counsel failed to object, thereby forfeiting Appellant's right to confront witnesses against him, when the State presented the complainant's accusatory statements that were made to a nurse. He further complains that he received ineffective assistance of counsel because trial counsel did not object to extraneous offense evidence, primarily that Appellant bragged about having a gun and using it to "take care of things." Finally, he complains that trial counsel failed to request the limiting instruction to which he was entitled. Appellant argues that the cumulative effect was prejudicial to the defense's case because the jury was allowed unfettered discretion to consider character propensity as direct evidence of guilt.1. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d at 813). The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. at 687, 104 S. Ct. at 2064. In other words, Appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.2. Waiver of Confrontation Clause Objection
Appellant first complains that his trial counsel provided ineffective assistance because trial counsel failed to object to an alleged Confrontation Clause violation. The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. This procedural guarantee is applicable in both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069 (1965). Appellant relies upon the holding of Crawford v. Washington, wherein the Supreme Court held that the Confrontation Clause bars the admission of testimonial statements of a witness who does not appear at trial, unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him, regardless of whether such statements are deemed reliable by the trial court. 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004). Generally, one must timely and specifically object to complained-of testimony to preserve error. See Tex.R.App.P. 33.1. Appellant complains that counsel should have objected when the State presented the complainant's accusatory statements made to a nurse in the course of the sexual assault examination. He complains of the following testimony that the prosecutor elicited from the examining nurse:[Cornett and Appellant] had came to the door at that time and asked her what she was doing. She said that she was just relaxing. At that time point they went away. Around 2:00, 2:30 in the morning, [Appellant] came back and knocked on the window and asked if he could use the phone to call a ride home. She went to the door, opened the door. When she turned back around there was a gun in her face. He told her to go inside. He wanted her to go into bedroom at that time. She said no. He asked her to be quiet and just cooperate with him. He said he could do it the easy way or the hard way. He asked her to undress. She undressed. And he told her he wanted to do it doggy style. So she bent over the couch. He put on a condom at that time, had sex with her. And once he was finished, he said: See it's not that bad. When he was getting ready to leave, he asked her not to tell anyone because he knew where she lived and he would get crazy on her.We conclude that the holding in Crawford would not apply to the present case. Here, the declarant of the unobjected-to extrajudicial testimonial statement, Lopez, testified at trial. In Crawford, the declarant claimed her spousal privilege and did not testify at trial. Crawford, 541 U.S. at 40, 124 S. Ct. at 1357. A close reading of Crawford reveals that its holding applies only when the extrajudicial testimonial statements of a witness who does not testify at trial are sought to be admitted. Id. at 59, 124 S. Ct. at 1369. In Crawford, the Supreme Court stated that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Id. at 59 n. 9, 124 S. Ct. at 1369, n. 9. At trial, Lopez testified and Appellant had the opportunity to and, in fact, did cross-examine her; therefore, the reasoning of Crawford does not apply. See Crawford v. State, 139 S.W.3d 462, 465 (Tex.App.-Dallas 2004, pet. ref'd) (holding that testimonial hearsay was admissible when declarant testified at trial and was subject to cross-examination). Because this testimony was not objectionable in this instance, trial counsel's performance was not deficient. Thus, we hold that trial counsel's failure to object in this instance does not constitute ineffective assistance of counsel.