Jimmy Ray McDaniel v. State ( 2006 )

Opinion filed November 30, 2006

Opinion filed November 30, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00284-CR

                                                     __________

                                 JIMMY RAY MCDANIEL, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                    On Appeal from the 238th District Court

                                                           Midland County, Texas

                                                   Trial Court Cause No. CR30289

                                                                   O P I N I O N

Jimmy Ray McDaniel appeals his conviction by a jury of two counts of the offense of aggravated sexual assault of a child.  The jury assessed his punishment on each count at thirty years in the Texas Department of Criminal Justice, Institutional Division.  The trial court ordered that the sentences be served consecutively.  McDaniel contends in two issues that the evidence is legally and factually insufficient to support his conviction and that he was denied the effective assistance of counsel when his attorney failed to call witnesses at the punishment phase of his trial.  We affirm.

McDaniel urges in issue one that the evidence is legally and factually insufficient to support his conviction.  In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trial of fact could have found the essential elements of the crime beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307 (1979).  To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light.  Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Watson, 2006 WL 2956272, at *8;  Johnson, 23 S.W.3d at 10-11.

The indictment alleged in Count I that on or about March 1, 2002, McDaniel intentionally and knowingly caused the complainant=s sexual organ to contact his when she was younger than fourteen and not his spouse. In Count II, the indictment alleged that on that same date McDaniel intentionally and knowingly caused the penetration of the complainant=s sexual organ by his finger when she was a child younger than fourteen and not his spouse. 

The seven-year-old complainant testified that an old babysitter named Ray, whom she identified as McDaniel, had touched her on one of the private places that are not supposed to be touched.  She said he touched her with his private part in her front and back private almost every time he came to babysit.  She insisted that he put his finger and his private part into her private part.  She related that he did these things when she was three years old.

Ilda Gonzalez, the complainant=s mother, testified that the complainant did not tell her that McDaniel had done anything to her until the day after her sixth birthday.  She said the complainant told her that McDaniel had been touching her private with his fingers.  She said she examined the complainant=s private and that it appeared red and opened.  She related that later the complainant had told her that McDaniel had put his fingers in her private.  She testified that the complainant had also said McDaniel put his private into her private.  Gonzalez acknowledged that the complainant had not told her at the time it happened.

Dr. Thomas Allen testified that he works at the Midland Memorial Hospital Emergency Room as the Director of the Sexual Assault Nurse Examiner Program.  He said the complainant indicated during her examination that Aa long, long time ago@ someone had touched her privates with his hand and that that someone touched her privates with his private.  He related that at the eight o=clock position of the hymen there was a thinning and a tear that had healed.  He confirmed that there was evidence the hymen had been broken.  He said that the examination indicated that there had been some kind of penetration into the vaginal area.

Jessica Dee-Ann Morgan Vasquez, McDaniel=s sister, testified that the time frame in which her brother would have had access to the complainant was from December 2001 to the end of 2002.

Randall Upton, an employee with the Midland Rape Crisis and Children=s Advocacy Center, testified that the complainant had told him that on more than two occasions McDaniel would pull her panties and shorts down before putting his private into her private.

Johnny Rodriguez testified that he had previously lived with Vasquez, McDaniel=s sister.  He recalled the last day that McDaniel would have had access to the complainant would have been August 2002.

We hold that from this evidence a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence.  Consequently, the evidence is legally and factually sufficient to support the conviction on both counts.  As we best understand McDaniel=s argument, it is that the evidence is insufficient because there was no evidence that he caused the trauma shown by the physical evidence.  While he acknowledges that the complainant testified concerning his penetration of her private parts, he urges that the evidence is insufficient because of the length of time between the assault and the child=s outcry.  He presents no authority in support of his argument, and we are not aware of any.  We overrule issue one.

McDaniel insists in issue two that he was denied the effective assistance of counsel when his trial attorney failed to call witnesses at the punishment stage of the trial. We apply a two-pronged test to ineffective-assistance-of-counsel claims.  Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  First, an appellant must show that his counsel=s performance was deficient; second, an appellant must show the deficient performance prejudiced the defense.  Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687. 

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.  A defendant must demonstrate that counsel=s representation fell below an objective standard of reasonableness and prevailing professional norms at the time of the alleged error.  Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 688-89. A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@  Strickland, 466 U.S. at 690.  An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 814.  Our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight.  Strickland, 466 U.S. at 689. 

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.  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.  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.   

Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel=s conduct was reasonable and professional.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  Rarely will the record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.

We first note that, as McDaniel acknowledges, his trial counsel did call McDaniel=s mother as a witness during the punishment but did not call any other witnesses.  Trial counsel did not testify in any post-trial proceeding.  Further, there is nothing else in the record to show that trial counsel=s choice not to call other witnesses during the punishment phase of the trial was anything other than trial strategy.  McDaniel has failed to overcome the presumption that trial counsel=s conduct was reasonable and professional.  Bone, 77 S.W.3d at 833. 

McDaniel primarily relies on the case of Milburn v. State, 15 S.W.3d 267, 268 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  We find that case distinguishable because in that case no witnesses were called on the defendant=s behalf at the punishment phase of the trial, although the record reflects that there were several witnesses available and reflects what their testimony would have been.  In the case at bar, there is nothing in the record to reflect that there were other witnesses who could have been called or what their testimony would have been. 

McDaniel also contends in his argument under this issue that his counsel was ineffective for failing to present any evidence showing that if he were placed on community supervision he would be placed in a rigorous sexual offender program or evidence regarding punishment alternatives such as the sexual offender treatment program. We first note that the admissibility of such evidence is in question.  See Brown v. State, 741 S.W.2d 453, 454-55 (Tex. Crim. App. 1987) (admission of evidence concerning terms and conditions of probation and manner of revocation allows an escalating battle of experts, and its probative value would be far outweighed by the danger of prejudicing or confusing the trier of fact); Najar v. State, 74 S.W.3d 82, 88 (Tex. App.CWaco 2002, no pet.) (such testimony might be helpful to the jury in Atailoring the sentence@). We also note that there is nothing in the record concerning the availability or the details of such a program. Nor is there evidence as to why counsel did not present such evidence at trial.  That being the case, this court has no basis upon which to hold that trial counsel=s conduct in failing to present such testimony constituted ineffective assistance.   We overrule issue two.

The judgment is affirmed.

PER CURIAM

November 30, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.