George Howard Hack v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-97-00422-CR

---

George Howard Hack, Appellant

v.

The State of Texas, Appellee

---

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0954279, HONORABLE MACE B. THURMAN, JR., JUDGE PRESIDING

---

Appellant George Howard Hack ("Hack") appeals a judgment of the district court convicting him of aggravated sexual assault of a child, a first-degree felony. In four points of error, Hack challenges the legal and factual sufficiency of the evidence, claims the verdict was improper because the record does not reflect that he waived his right to a jury trial in writing, and asserts that he was denied effective assistance of counsel. We will affirm the judgment of the district court.

BACKGROUND

On July 24, 1995, Cynthia Day, the victim's mother, left her three-year-old child with a baby-sitter at Hack's home. When Day returned, her child was anxious to leave quickly, and once home complained to her mother that she was hurting in "her baby-noonoo." Day later explained the victim was referring to her vagina. Day thought initially that the victim may have hurt herself while using the restroom because she was still potty-training. Day took her to the restroom to examine her. While in the bathroom, the victim began screaming in pain, and Day discovered the child's vaginal area was swollen and raw. Day dressed the victim and asked her what happened. The victim told her that after "Barney," a children's television show, "Georgie had hurt her privates with his fingers." "Georgie" is Hack's alleged nickname. Day testified that prior to this occasion the victim had never accused anyone of sexually assaulting her.

Day and the victim returned to Hack's house to confront Hack, and the victim indicated that Hack was the man who assaulted her. Hack and his mother, Mary Bennett, with whom Hack lived, denied the allegations. Day then took the victim to the hospital, where she was examined. The police requested a second exam, so Day took the victim to her regular physician Dr. Peter Hine approximately one day after the alleged offense occurred. Dr. Hine found redness and an abrasion in the victim's vaginal area.

After the assault, the victim regressed in her potty-training and began having nightmares. She started seeing a therapist. At trial, the therapist testified that the regression in potty-training was consistent with sexual abuse. Hack was convicted of aggravated sexual assault of a child, a first degree felony, and was sentenced to five years in the Texas Department of Criminal Justice Institutional Division. Following the trial, Hack filed a motion for new trial, which the court denied. Hack now appeals his conviction on four points of error.

DISCUSSION

Hack's first point of error challenges the legal sufficiency of the evidence. The United States Supreme Court established the appropriate standard of review for legal sufficiency questions in Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson test requires us to view the evidence 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. Id; Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 118 S. Ct. 100 (1997). It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all of the incriminating circumstances. Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. 1994). When assessing the sufficiency of evidence to support a conviction, we must consider all evidence which the factfinder, whether rightly or wrongly, was permitted to consider. Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988).

In support of his legal insufficiency claim, Hack argues that there is no evidence of penetration, a necessary element of aggravated sexual assault. In the context of the aggravated sexual assault statute, "penetration" has been defined by the court as meaning "to enter into" or "to pass through." See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); Tex. Penal Code Ann. § 22.021 (West Supp. 1999). From this definition, mere contact with the outside of an object is not penetration of that object. Id. "But pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact." Id. In Vernon, the court concluded that penetration could occur as long as the contact with the victim was more intrusive than contact with the outer vaginal lips. Id.

From the evidence presented at trial, a rational trier of fact could have found beyond a reasonable doubt that Hack's contact with the victim was more intrusive than mere contact with her outer vaginal lips and therefore was penetration. At trial, the victim testified four times that Hack put his fingers in her vagina. Her first testimony to that effect was to nod her head in affirmance when asked if Hack put his fingers inside her. In later testimony, she twice affirmatively stated that Hack "stuck [his fingers] in there." Finally, before concluding her testimony, the prosecutor asked the victim if Hack "actually went inside [her] vagina," and the victim nodded her head again in agreement. Furthermore, Dr. Hines testified that he found redness in her vaginal area and an abrasion on her inner labia majora that could have been made by a fingernail. Based on the testimony of the victim and Dr. Hines, a rational trier of fact could have found beyond a reasonable doubt that Hack penetrated the victim. We therefore overrule Hack's first point of error.

Hack next attacks the factual sufficiency of the evidence supporting the verdict. The proper standard of review for a factual sufficiency question was articulated by this Court in Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd), and was later adopted by the Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Under this standard, the appellate court views all the evidence without the prism of "in the light most favorable to the prosecution," and sets aside a verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 129; Stone, 823 S.W.2d at 381. The review must be appropriately deferential so as to avoid the appellate court's substituting its judgment for that of the jury, and furthermore must not intrude upon the factfinder's role as the sole judge of the weight and credibility of witness testimony. Clewis, 922 S.W.2d at 133; Jones, 944 S.W.2d at 648.

Hack initially argues the evidence is factually insufficient because of contradictory testimony presented at trial. The contradictions that Hack points to are of little significance. Hack first cites the fact that the victim testified she thought Hack's hair was blond when it was actually dark colored. Despite her apparent confusion over hair color, however, the victim still identified Hack as the man who assaulted her on the day of the offense. Hack next points to testimony that the victim complained in prior instances that her genital area hurt. In particular, Hack calls attention to the testimony that prior to being assaulted, the victim was scooting her bottom on the floor, complaining that it hurt. Day did acknowledge that the victim occasionally hurt herself while using the restroom, causing discomfort in her genital area. She also testified, however, that the extreme circumstances surrounding the incident on July 24, 1995--the victim's red and swollen vagina and her screaming--never occurred before. Furthermore, the victim denied she was scooting her bottom on the floor. The only people who contradicted her were two other children present that day; the two adults baby-sitting the victim never testified they saw her engaging in the behavior alleged by the two children. Finally, Hack points to Lourdes Kahmann's testimony that the victim was not potty-trained, which Hack argues contradicts Day's testimony. The testimony of the two women is not necessarily contradictory. Day testified that her daughter was "pretty much potty-trained" by the day of the assault, and this testimony is supported by the fact that on that day the victim was wearing underwear, not diapers. Lourdes testimony to the contrary was based on her observations of the victim while baby-sitting her months before the day of the assault. Consequently, Lourdes cannot persuasively speak to the victim's level of potty-training on July 25, 1995.

Hack further argues that the evidence is factually insufficient because none of the testimony at trial placed him at his house with enough time to commit the alleged crime. Hack points to the testimony of Mary Hale, Frances Aguilar, Jack Hale, Juanita Aguilar, and Mary Bennett as the witnesses establishing that he did not have time to commit the offense. We disagree with Hack's interpretation of the witnesses's testimony.

The victim testified she was assaulted after "Barney," which ended at 4:00 p.m., and Day testified that she picked up the victim from the Hack's home around 5:00 p.m.; thus the assault occurred sometime between 4:00 p.m. and 5:00 p.m. Mary Hale testified that she saw Hack at a gas station at 4:10 p.m. Assuming she did, Hack still had ample time after leaving the gas station to commit the offense. Hack mischaracterizes the testimony of Jack Hale and Frances Aguilar. Hack states that Aguilar testified Hack did not arrive home until after Day returned for the victim, and that Hale testified Hack did not arrive home until 4:30 p.m. This testimony refers to the time they first saw Hack, not the time he arrived home. Quoting Hale's testimony, in fact, thwarts Hack's argument because it places Hack at the scene of the crime at a time consistent with the time the offense occurred. Juanita Aguilar testified she saw Hack at her house, which is within walking distance of Hack's home, at 4:00 p.m. Again, even if this testimony is true, Hack still had ample time to commit the offense. The only witness who testified that Hack was not at the Bennett's house in time to commit the act was his mother, Mary Bennett. She testified that Hack did not arrive home until after Day picked up the victim from Hack's house. Mary Bennett's testimony is directly contradicted by the testimony of her husband George Bennett, who testified that he saw Hack at the house before 4:00 p.m. The testimony at trial, despite Hack's contentions to the contrary, supports the position that Hack had ample opportunity to commit the offense.

In providing due deference to the trial court's judgment of the weight and credibility of testimony, we fail to find that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Consequently, we overrule Hack's second point of error.

In Hack's third point of error, he asserts that the verdict was improper because the court's file does not reflect that he waived his right to a jury trial in writing as required by article 1.13 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 1.13 (West Supp. 1999). In deciding this point of error, we will indulge every presumption in favor of the regularity of the documents in the trial court, meaning that the recitations in the records of the trial court, such as a formal judgment, are binding in the absence of direct proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985) (opinion on rehearing). The absence of a written jury waiver from the record on direct appeal does not overcome the presumption of regularity and truthfulness of the judgment where there is not an objection to the accuracy of the judgment, and there is no affirmative showing in the record that a written jury waiver was not executed by the defendant. Meek v. State, 851 S.W.2d 868, 870 (Tex. Crim. App. 1993).

In the present case, the district court entered a judgment that states in relevant part:

On the 28th day of May, A.D., 1997, this case was called for trial, and the State appeared by her District Attorney, and the defendant, George Hack, appeared in person in open court, his counsel, Cheryl Johnson, also being present, and the said defendant having been duly arraigned pleaded NOT GUILTY to the indictment herein, both parties announced ready for trial, and thereupon a trial by jury was waived by all parties . . . .

Hack objected to the accuracy of this judgment in a motion for new trial. At the hearing on Hack's motion, both the prosecutor in the case, Bill Mange, and the defense counsel, Cheryl Johnson, testified. Johnson testified that she was unsure if a jury waiver was signed in the case, but admitted that during trial she told the judge she believed Hack waived his right to a jury trial in writing. At the hearing, the prosecution entered into evidence a portion of the trial transcript corroborating Johnson's admission. The exhibit introduced at the hearing also reflects that Hack informed the trial judge in open court that he did not desire a jury trial, and Mange indicating that Hack had waived a jury trial in writing. Mange further testified at the hearing that he had specific independent recollection of a jury waiver having been signed by himself, Hack, and Johnson. Mange apparently made notes to that effect in the State's file. Mange also testified that he accepted the waiver document from Johnson with Johnson and Hack's signature already affixed, and then signed it himself before tendering it to the court. The testimony of the prosecutor and defense counsel at the hearing, coupled with the exhibit, all of which is contained in the record, constitutes an affirmative showing that Hack executed a written jury waiver. Consequently, we find the presumption that the judgment is regular and truthful is not overcome by Hack. We therefore overrule appellant's third point of error.

In Hack's fourth point of error, he alleges he was denied effective assistance of counsel. The standard of review for ineffective assistance of counsel was formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and later adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). For this Court to reverse the district court's decision based upon ineffective assistance of counsel, the defendant must meet a two-prong test. First, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Hernandez, 726 S.W.2d at 55. After meeting this first prong, the defendant must then show prejudice by demonstrating that, but for counsel's errors, the result of the proceeding would be different. Hernandez, 726 S.W.2d at 55. This standard is applied to the totality of the representation and is therefore not determined by isolated acts or omissions of counsel. Moore v. State, 700 S.W.2d 193, 205 (Tex. Crim. App. 1985). Furthermore, this Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993) (quoting Strickland, 466 U.S. at 688-89). Lastly, in applying the two-prong standard, we must be highly deferential to counsel's judgment. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Hack argues that he was denied effective assistance of counsel because his defense attorney failed to withdraw his waiver of a jury trial when she found out that Judge Thurman, not Judge Blackwell, would be presiding over his case. Johnson initially advised Hack to waive a jury trial because she thought Judge Blackwell would provide greater leniency than a jury. On the morning of trial, she found out Judge Thurman rather than Judge Blackwell would be the presiding judge. Johnson felt that at that late date, she could not withdraw Hack's waiver.

It is not clear from the cases on withdrawing jury waivers whether Johnson could have withdrawn Hack's waiver of a jury trial in this instance. Regardless of whether she could have withdrawn the waiver, we look to the totality of Johnson's performance in applying the Strickland test, and the record shows that Hack was provided with reasonable representation. Johnson was well acquainted with the facts of the case and thoroughly cross-examined each of the State's witnesses. Johnson also elicited the testimony of fifteen defense witnesses. Deciding to waive a jury trial was a strategic decision that cannot be considered in isolation from the rest of the defense strategy exercised by Johnson. Even assuming without deciding that Johnson erred in making the decision to advise Hack to waive a jury trial, a defendant is not guaranteed errorless representation. Ingham, 679 S.W.2d at 509.

Since Hack failed to show that Johnson's representation fell below an objective standard of reasonableness and therefore has not met the first prong of the Strickland test, we need not consider whether Hack demonstrated that the outcome of the trial would have been different but for Johnson's error. We overrule Hack's fourth point of error.

CONCLUSION

Having held that the verdict against Hack was legally and factually sufficient, that the judgment against him was accurate regardless of the absence of a written jury waiver, and that he received effective assistance of counsel, we affirm the decision of the district court.

Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Powers and Kidd

Affirmed

Filed: December 17, 1998

Do Not Publish

PAN STYLE="font-family: CG Times Regular"> In Hack's fourth point of error, he alleges he was denied effective assistance of counsel. The standard of review for ineffective assistance of counsel was formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and later adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). For this Court to reverse the district court's decision based upon ineffective assistance of counsel, the defendant must meet a two-prong test. First, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Hernandez, 726 S.W.2d at 55. After meeting this first prong, the defendant must then show prejudice by demonstrating that, but for counsel's errors, the result of the proceeding would be different. Hernandez, 726 S.W.2d at 55. This standard is applied to the totality of the representation and is therefore not determined by isolated acts or omissions of counsel. Moore v. State, 700 S.W.2d 193, 205 (Tex. Crim. App. 1985). Furthermore, this Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993) (quoting Strickland, 466 U.S. at 688-89). Lastly, in applying the two-prong standard, we must be highly deferential to counsel's judgment. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Hack argues that he was denied effective assistance of counsel because his defense attorney failed to withdraw his waiver of a jury trial when she found out that Judge Thurman, not Judge Blackwell, would be presiding over his case. Johnson initially advised Hack to waive a jury trial because she thought Judge Blackwell would provide greater leniency than a jury. On the morning of trial, she found out Judge Thurman rather than Judge Blackwell would be the presiding judge. Johnson felt that at that late date, she could not withdraw Hack's waiver.

It is not clear from the cases on withdrawing jury waivers whether Johnson could have withdrawn Hack's waiver of a jury trial in this instance. Regardless of whether she could have withdrawn the waiver, we look to the totality of Johnson's performance in applying the Strickland test, and the record shows that Hack was provided with reasonable representation. Johnson was well acquainted with the facts of the case and thoroughly cross-examined each of the State's witnesses. Johnson also elicited the testimony of fifteen defense witnesses. Deciding to waive a jury trial was a strategic decision that cannot be considered in isolation from the rest of the defense strategy exercised by Johnson. Even assuming without deciding that Johnson erred in making the decision to advise Hack to waive a jury trial, a defendant is not guaranteed errorless representation. Ingham, 679 S.W.2d at 509.

Since Hack failed to show that Johnson's representation fell below an objective standard of reasonableness and therefore has not met the first prong of the Strickland test, we need not consider whether Hack demonstrated that the outcome of the trial would have been different but for Johnson's error. We overrule Hack's fourth point of error.