in Re: Billy Ray Johnson, by and Through Next Friend Lue Wilson ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-08-00097-CV ______________________________



IN RE: BILLY RAY JOHNSON BY AND THROUGH NEXT FRIEND LUE WILSON

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Original Mandamus Proceeding

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION

Counsel has filed a petition asking this Court to issue a writ of mandamus against Judge John Ovard, Administrative Judge of the First Administrative Region, in Dallas, Texas. In the petition, counsel complains because Ovard did not direct that a hearing be held on a motion that they filed seeking to recuse a district judge.

This Court has jurisdiction to issue a writ of mandamus against "a judge of a district or county court in the court of appeals district." Tex. Gov't Code Ann. § 22.221(b) (Vernon 2004). Dallas County is not within the territorial jurisdiction of this Court, and Ovard is not a judge of a district or county court within our district. See Tex. Gov't Code Ann. § 22.201(g). We have no jurisdiction over this petition.

We deny the petition for writ of mandamus.

Jack Carter

Justice

Date Submitted: September 9, 2008

Date Decided: September 10, 2008

not correct.

Three years after it decided Bone, in Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005), the Texas Court of Criminal Appeals acknowledged that there are cases in which ineffective assistance claims may be raised on direct appeal and the court noted that such claims may, in some cases, achieve success in obtaining a reversal on direct appeal without the necessity of first having sought a formal hearing at which trial counsel has the opportunity to explain his trial strategy or otherwise address the alleged ineffective assistance claim. In Andrews, the prosecutor made a misstatement of the law during closing arguments. Id. at 100. Andrews claimed in the intermediate appellate court that he had received ineffective assistance of counsel at trial because counsel had failed to object to the prosecutor's error. Id. at 100-01. The intermediate court disagreed and affirmed the trial court's judgment after noting that trial counsel should not be found ineffective without first being given an opportunity to explain the reasons for not having objected to the prosecutor's misstatement of the law. Andrews v. State, 106 S.W.3d 402, 406-07 (Tex. App.--Houston [1st Dist.] 2003), rev'd, 159 S.W.3d 98 (Tex. Crim. App. 2005). On discretionary review, the Texas Court of Criminal Appeals concluded "that, under the unusual circumstances of this case, there could be no legitimate trial strategy in failing to object to the prosecutor's misstatement . . . ." Andrews, 159 S.W.3d at 100. That court then sustained Andrews's claim of ineffective assistance and remanded the case for a new punishment hearing. Id. at 103-04.

Since the decision in Andrews, the Texas Court of Criminal Appeals has not yet suggested a retreat from its position that a hearing on a motion for new trial is not a necessary procedural requirement for all claims of ineffective assistance. Thus, as it relates to the case now before this Court, the State's general contention to the contrary is without foundation in current Texas jurisprudence.

II. Ineffective Assistance Claims Require Two Types of Proof

To succeed on appeal in raising a claim that one's trial counsel provided ineffective assistance, an appellant must demonstrate by a preponderance of the evidence (1) that counsel's representation fell below an objective standard of reasonableness and (2) that this deficient performance prejudiced appellant's defense. Strickland, 466 U.S. at 687; Andrews, 159 S.W.3d at 100-01; Bone, 77 S.W.3d at 833. "It is critical that an appellant demonstrate the record shows both the alleged deficiency(ies) and the alleged prejudice." Bessey v. State, 199 S.W.3d 546, 555 (Tex. App.--Texarkana 2006, pet. granted). Under Strickland, the appellant "must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Mosley v. State, 141 S.W.3d 816, 826 (Tex. App.--Texarkana 2004, pet. ref'd). The appellant must meet his burden as to both prongs of the Strickland test; should the proof fail as to either, then we must overrule the claim of ineffective assistance. Id. For example, under Strickland's first prong, if we can envision a legitimate trial strategy to explain counsel's alleged ineffectiveness, then we are foreclosed from sustaining the appellant's claim of reversible error. See Goodspeed v. State, 187 S.W.3d 390, 392-93 (Tex. Crim. App. 2005).

We begin our analysis of an ineffective assistance claim with the presumption that counsel performed competently at trial. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We also presume that counsel's decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We will not conclude that the challenged conduct constitutes deficient performance unless the conduct was so outrageous no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814. With this analytical framework in mind, we now turn to Hankey's claim of ineffective assistance.

III. The Record Does Not Support Hankey's Claim of Ineffective Assistance

Hankey contends his trial counsel provided ineffective assistance by failing to object to some of the State's evidence. More specifically, Hankey contends two key pieces of otherwise inadmissible evidence came before the jury: (a) "outcry witness" testimony from the victim's mother and (b) a videotape of the victim's 2004 forensic interview. Both the mother's testimony and the videotape interview serve to incriminate Hankey. The trial record shows Hankey's counsel did not object to either piece of evidence, both of which Hankey believes were inadmissible as a matter of law. Thus, Hankey now asserts that the erroneous admission of this incriminating evidence, without any objection from his trial counsel, had a substantial and prejudicial impact on the jury's finding of guilt. Based on this impact, Hankey concludes there is no reasonable trial strategy that could account for allowing his trial counsel's acquiescence to the admission of this damning evidence.

A. Testimony by the Victim's Mother

Texas law permits the State to introduce what would otherwise be considered inadmissible hearsay ⁽²⁾ in a case where the accused is charged with aggravated sexual assault (or other enumerated offenses), and where the alleged victim was twelve years of age or younger at the time of the offense, if the hearsay sought to be admitted qualifies as what has come to be called testimony of the child's "outcry." Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Our law permits the "first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense" to testify about the moment wherein the child details the defendant's criminal conduct. Id. It is possible for there to be multiple outcry witnesses if each individual outcry concerns an event different from the other outcry(ies). Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.--Texarkana 2000, pet. ref'd). This potential for multiple outcry witnesses exists because "an outcry witness is not person-specific, but event-specific." Id. Nevertheless, both the applicable statute and our caselaw are clear on the singular proposition that "there may be only one outcry witness to the victim's statement about a single event." See, e.g., id.

In this case, the State called the victim's mother, Carol, during its case-in-chief. Carol testified on direct and during cross-examination by Little's attorney that she was told by the victim that Hankey and codefendant Little had sexually assaulted the victim about one month before the victim made her outcry. Carol testified this "outcry" occurred while she and the victim were at Carol's workplace in June or July 2001. Carol testified the victim was thirteen years of age at the time of this outcry, a statement which the victim herself confirmed during her own testimony.

However, the record in this case unequivocally demonstrates that Carol was not the first person over eighteen years of age to whom the victim reported these same details of the sexual assault by Hankey and Little. Instead, the victim, Carol, and all the other witnesses in this case identified Brenda Farley as the first person over eighteen years of age to whom the victim first reported the details of the sexual assault. In addition, after reviewing the record and comparing the details of the various witnesses' statements, the record before us clearly reflects that the victim omitted no significant details of the sexual assault from her initial outcry to Farley such as would enable the trial court (or this Court) to classify Carol as a proper outcry witness for any additional criminal conduct beyond that which the victim had first disclosed to Farley. Cf. Martinez v. State, 178 S.W.3d 806, 814-15 (Tex. Crim. App. 2005) (outcry failed to meet statutory requirements for admission; trial court erred by admitting outcry testimony over hearsay objection). Therefore, Carol's testimony about the victim's outcry was hearsay, ⁽³⁾ and such testimony was not excepted from the hearsay rule by Tex. Code Crim. Proc. Ann. art. 38.072. Cf. Broderick, 35 S.W.3d at 73-74 (trial court erred by determining police officer was proper outcry witness for "touching" incident, but did not err by determining officer was proper outcry witness for "licking" incident). But, as noted above, Hankey's counsel did not object to this testimony during trial as being improper hearsay or for its failure to meet the statutory requirements for an exception to the hearsay rule; the testimony was, therefore, admitted for all purposes at the trial against Hankey and Little.

B. Forensic Interview

The State also played for the jury a video recording of an interview of the victim that had been recorded March 26, 2004, nearly three years after the victim initially reported the sexual assault. Hankey's trial counsel did not object to the State playing this recorded interview for the jury. The victim says during both her interview and her trial testimony that she was raped by Hankey and Little, providing virtually the same details of the crime in both instances. (Thus, the videotape served to do little more than repeat the victim's trial testimony.) Hankey now contends this interview was inadmissible because no evidentiary rule or statute permits the admission of this videotape.

Hearsay is not admissible except as provided by our evidentiary rules or by statute. Dunn v. State, 125 S.W.3d 610, 613-14 (Tex. App.--Texarkana 2003, no pet.). In Dunn, the trial court admitted a video recording of a child's outcry regarding being sexually assaulted. Id. at 612-13. We concluded that neither the Texas Rules of Evidence nor Article 38.072 of the Texas Code of Criminal Procedure authorizes a trial court to admit, over a proper hearsay objection, such video evidence. Instead, Article 38.072 "clearly contemplates that a person, subject to confrontation and cross-examination, will testify about what was said." Id. at 614 (emphasis added).

In the case currently on appeal, we perceive nothing in the record that might have justified the trial court in overruling a properly-lodged hearsay objection to the admission of the victim's videotaped forensic interview. Cf. Broderick, 35 S.W.3d at 73-74. Yet, as Hankey's trial counsel did not make such an objection, the trial court was never called upon to exclude the now complained-of evidence.

C. A Possible Trial Strategy Exists to Explain Counsel's Failure to Object

While it would be possible to criticize Hankey's trial counsel for allowing the admission of this otherwise inadmissible evidence (both Carol's testimony regarding the victim's outcry and the 2004 recorded interview), we can also just as easily theorize a reasonable strategic reason for Hankey's trial counsel's failure to raise an objection to the now complained-of evidence. For example, it is possible Hankey's trial counsel believed that admitting Carol's testimony regarding the victim's outcry, as well as playing the victim's videotaped interview, would be helpful as part of counsel's efforts to undermine the victim's credibility. In a case like this where the verdict ultimately turns on whether the jury believes or disbelieves the victim, it is a reasonable trial strategy for defense counsel to allow the admission of any evidence which might subsequently assist counsel in persuading the jury that the victim is not worthy of belief or credibility in the jury's eyes. In this case, Carol's testimony and the recorded forensic interview might both be seen as pieces of evidence to which Hankey's trial counsel could point as being evidence that undermines the victim's credibility.

Concerning the basic facts surrounding the sexual assault, the victim's testimony, Carol's testimony, and the videotaped forensic interview are (with some divergences) generally consistent about the details of the crime. This is because the source of these testimonies is all the same--the victim herself. On the videotape, the victim relates the following story: She and her best friend were babysitting Hankey's and Little's children in the latter's home one evening in June 2001. Everyone had been in Hankey and Little's bedroom when Hankey and Little asked the victim's friend to leave the room. The victim contended that, once the friend left, the sexual assault occurred. Little reportedly removed the victim's tampon and told Hankey to sexually assault the victim, which he did. The victim then screamed, was ultimately able to push Hankey away, put her clothes back on, and flee the room. The victim did not leave Hankey and Little's home, however; instead, the victim spent the night and remained at the house for part of the following day.

During cross-examination, Hankey's attorney was able to highlight some problems with the story the victim gave during the videotaped interview. When the victim's best friend testified, this friend admitted that she never heard the victim scream that night, despite the mobile home's relatively thin walls and despite being only a few feet away from the bedroom where the assault took place. And even though she is close friends with the victim, this best friend also confessed that she herself did not believe that the victim's story made sense. In front of a different jury, this testimony might have served to severely undermine the victim's credibility.

Similarly, during both the videotaped interview and Carol's testimony, it became clear that Carol and the victim first reported the crime to police in 2001. Yet, between 2001 and 2004, neither the law officers nor Carol did anything to follow through with seeking punishment for the reported crime--a fact which Hankey's trial counsel argued suggests that the police themselves did not originally believe a crime had actually occurred. Had Carol not been allowed to testify, and had Hankey's trial attorney not acquiesced to the admission of the videotaped interview, counsel might not have been able to solicit evidence of the fact that no police agency had investigated this case for over three years because, perhaps, the police themselves did not believe the victim's story. This line of reasoning might also have been effective in persuading a different jury to conclude that the victim in this case lacked credibility and, therefore, would render a verdict of acquittal.

On summation, defense counsel did point out some contradictions between the testimony of the victim at the time of trial and her videotaped statement. Hindsight can be incredibly accurate; trial attorneys ply their profession without that advantage. While a tactical decision to not object to the admission of evidence that is otherwise inadmissible (when that evidence might also be used to point out inconsistencies in the victim's story and might be used to demonstrate that various witnesses and police agencies do not themselves believe the victim's story) might not have proven to be a successful trial strategy in this particular case, we cannot say such a strategy is either unreasonable or patently ineffective. Accordingly, because we can theorize a reasonable strategy to explain counsel's alleged ineffective assistance, the record before us will not support a finding that Hankey has carried his burden of satisfying Strickland's first prong. As such, we must overrule his claim of ineffective assistance.

There being no other points of error raised, we affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: April 11, 2007

Date Decided: May 24, 2007

Publish

1.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

2.

Hearsay is an unsworn out-of-court statement offered at trial for the truth of the matter asserted. Hearsay is inadmissible at trial except where allowed by rule or statute. Tex. R. Evid. 801, 802.

3. See Tex. R. Evid. 801, 802.