Jason Lyle Miller v. State ( 2006 )

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                                                                                                        NO. 12-05-00281-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JASON LYLE MILLER,      §                      APPEAL FROM THE THIRD

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Jason Lyle Miller appeals his conviction for aggravated sexual assault of a child, for which he was sentenced to imprisonment for fifteen years. Appellant raises four issues on appeal. We affirm.

Background

            Following a domestic dispute with his wife, Appellant decided to spend a few nights at his mother’s nearby residence. Between 2:30 a.m. and 3:00 a.m. on April 27, 2002, Appellant arrived at his mother’s house¹ to find it occupied by other relatives. As he entered the house, Appellant saw F.G.’s mother and her boyfriend asleep in a car parked in the driveway. Appellant’s sister and her boyfriend occupied the sleeper sofa. Appellant’s sister’s infant child was sleeping in Appellant’s mother’s bedroom. Eleven year old F.G. and her infant sister were asleep in the second bedroom.

            According to F.G.’s testimony, Appellant entered the bedroom in which F.G. and her sister were sleeping at approximately 3:00 a.m. F.G. testified that she awoke as Appellant entered the room and got into the bed next to her.² F.G. stated that Appellant moved her leg onto his own leg, then got on top of her and placed his hand inside her shirt. F.G. further stated that Appellant, still clothed, began “humping”³ her and kissed her on the lips. F.G. testified that she was scared and did not say anything. F.G. further testified that Appellant then got up and went to the bathroom and that when he returned, she feigned sleep. F.G. stated that Appellant again got on top of her and kissed her vagina over her shorts. F.G. further stated that Appellant next moved his finger through the legs of her shorts and put it in her vagina, which hurt her. Next, according to F.G., Appellant tried to get her to put her hand down his pants, which were unbuttoned, and touch his private part. However, F.G. stated that she acted as if there was something the matter with her infant sister as an excuse to move away from Appellant. F.G. testified that Appellant again went to the bathroom and, upon his return, retrieved a pillow and went to sleep on the floor. F.G. further testified that Appellant told her, “Keep this a secret. It’s only between me and you.” F.G. later told her older sister what had happened. Her sister convinced her to tell her mother of the occurrence.

            Appellant testified in his defense.⁴ Appellant stated that when he arrived at his mother’s house, he noticed that each of the beds was taken. Appellant further stated that his sister’s child had trouble going to sleep, so he did not feel comfortable moving her out of his mother’s bed. Appellant testified that he could not sleep on the floor in his mother’s room because she had a dog that had urinated on the carpet in that room. Appellant further testified that he did not sleep in the recliner in the living room because it was broken. Appellant stated that he entered the room in which F.G. and her sister were sleeping. Appellant further stated that F.G. looked him in the eye as he told her to move over and give him a pillow. Appellant testified that he took a pillow from the bed and slept on the floor. Appellant further testified that he got up one time during the night and went to the bathroom.

            Ultimately, the jury found Appellant guilty of aggravated sexual assault of a child and indecency with a child.⁵ Following a trial on punishment, only the conviction for one count of sexual assault of a child was submitted to the jury. The jury assessed Appellant’s punishment at imprisonment for fifteen years. The trial court sentenced Appellant accordingly, and this appeal followed.

Admissibility of Prior Sexual Abuse Allegations

            In his first issue, Appellant argues that the trial court erred by declining to admit testimony concerning prior sexual abuse allegations made by the victim, which contradicted F.G.’s testimony that she had made no such allegations. We will reverse a trial court's decision to exclude evidence only if the trial court abused its discretion. Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 389–90 (Tex. Crim. App. 1990). A trial court abuses its discretion when its “decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Wofford v. State, 903 S.W.2d 796, 799 (Tex. App.–Dallas 1995, pet. ref’d). Our inquiry on appeal is whether the result was reached in an arbitrary or capricious manner. See Montgomery, 810 S.W.2d at 380. Therefore, we uphold a trial court's evidentiary ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. See Jones v. State, 833 S.W.2d 118, 125 n.15 (Tex. Crim. App. 1992).

            In the instant case, Appellant, on cross examination, asked F.G. if this sort of experience had ever happened to her before. F.G. answered that it had not. Appellant then sought to question F.G. concerning someone named D.B. The State objected, and a bench conference was conducted.

            During the bench conference, the State clarified its objection, arguing that Appellant was improperly attempting to elicit testimony concerning prior sexual conduct. Appellant contended that it was his understanding that F.G. had previously been sexually assaulted and he wanted to question her about that incident. The trial court concluded that since in her testimony F.G. had already denied ever being sexually assaulted, it was not going to allow Appellant to question her further with regard to something she indicated had not happened. Appellant further argued that he wished to introduce evidence that F.G. was sexually assaulted by D.B., and that such evidence would tend to show that F.G. had a motive to report the event the way she did. Appellant explained that it is well known in medical annals that when children are victims of sexual assault, they sometimes suffer from transference syndrome, that is, they transfer blame for a previous sexual assault to another individual. Appellant further argued that the reference to “past sexual behavior” in Texas Rule of Evidence 412 does not include being a victim of sexual assault.⁶ The trial court sustained the State’s objection.

            Subsequently, Appellant was permitted to further cross examine F.G. outside the jury’s presence. The following exchange between Appellant’s trial counsel and F.G. occurred:

[APPELLANT’S COUNSEL]: Now, [F.G.], you recall I had asked you a question earlier about whether or not you had ever experienced any type of a sexual assault before in your life. Do you remember that question?

                [F.G.]: Yes, sir.

[APPELLANT’S COUNSEL]: Okay. Well, I just have a couple -- couple of more questions for you in that -- in that same area. Okay?

Okay. One of the questions is have you ever reported to someone else that you have been the victim of a assault?

                ....



                [F.G.]: I’ve never been assaulted by someone after this.

[APPELLANT’S COUNSEL]: Okay. And have you ever told someone else that you were?

                [F.G.]: No, because I’ve never been.

                [APPELLANT’S COUNSEL]: Okay. So your answer is no; right?

                [F.G.]: Yes.

[APPELLANT’S COUNSEL]: Okay. So if someone else says that you did, they’re not telling the truth, are they?

                [F.G.]: No, sir.

                Thereafter, Appellant elicited testimony from his mother, Patricia Manville, outside the jury’s presence. Manville stated that in spring 2001, F.G. and her sister came over to her house. While at her house, F.G. and her sister told Manville that someone named D.B. had molested them and two other children by putting his finger in their privates. Manville testified that she told F.G.’s mother what the girls had told her, but never reported the matter to the authorities. Manville further testified that she never told anyone what F.G. told her until her testimony in Appellant’s case.

            Appellant offered Manville’s testimony “for impeachment purposes, as well as to show that there was an allegation of sexual conduct” where F.G. “testified that she never made any such allegation ever before.” The court overruled Appellant’s request.

            On appeal, Appellant argues that Manville’s testimony concerning F.G.’s prior allegations that she was sexually assaulted should have been admitted as a prior inconsistent statement. Before the trial court may admit extraneous evidence of a prior inconsistent statement, the witness that purportedly made the statement must be told the contents of such a statement, the time and place, and person to whom it was made, and must be afforded an opportunity to explain or deny such a statement. See Tex. R. Evid. 613; see Huff v. State, 576 S.W.2d 645, 647 (Tex. Crim. App. [Panel Op.] 1979). If the witness unequivocally admits having made the statement, extrinsic evidence concerning the statement is inadmissible. Id. Because the rule is designed to give the witness an opportunity to explain prior inconsistencies, the opposing party must provide the witness enough information to explain the prior statement or to admit or deny it. Fields v. State, 966 S.W.2d 736, 741 (Tex. App.–San Antonio 1998), rev’d on other grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999). Merely asking the witness if she had ever said anything different to anyone at any time leaves the witness in the dark as to what the attorney might be referring. See id.

            In the case at hand, during his offer of proof, Appellant failed to inquire of F.G. as to when she may have previously reported that she was sexually assaulted, where she made such a statement, or to whom she made such a statement. We iterate that we will uphold a trial court's evidentiary ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. See Jones, 833 S.W.2d 125 n.15. As such, since Appellant failed to lay a proper predicate for admission of extrinsic evidence of a prior inconsistent statement, we hold that the trial court did not err in declining to admit Manville’s testimony when Appellant sought its admission for that purpose. See Trussell v. State, 585 S.W.2d 736, 739 (Tex. Crim. App. [Panel Op.] 1979) (the proper foundation must be laid before a prior inconsistent statement may be used to impeach a witness); see also Ellingsworth v. State, 487 S.W.2d 108, 112 (Tex. Crim. App. 1972).   Appellant’s first issue is overruled.

Factual Sufficiency

            In his second issue, Appellant argues that the evidence is neither factually sufficient to support the jury’s verdict nor the resulting sentence imposed. We initially note that a review of the evidence for factual sufficiency is inappropriate with respect to the assessment of punishment. See Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App.–Texarkana 2001, pet. ref’d); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App.–Beaumont 1998, no pet.); Flores v. State, 936 S.W.2d 478, 479 (Tex. App.–Eastland 1996, pet. ref’d). Hence, we decline to conduct a factual sufficiency review of the evidence on punishment.

            In conducting a factual sufficiency review of the evidence supporting the jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002) (a verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust); see Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury's finding “shocks the conscience” or “clearly demonstrates bias.” Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1997).

            Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. It is not enough that we might harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of the conflict. See Watson, 2006 WL 2956272, at *7.

            In the case at hand, Appellant argues that the testimony of Deputy Kalinda Franklin with regard to F.G.’s police statement indicates a discrepancy in F.G.’s testimony that contradicts her in court testimony in support of Appellant’s conviction. The police report prepared by Franklin, a portion of which Appellant quotes in his brief, states in pertinent part as follows:

.... The victim states she and the baby were asleep when the suspect, Jason Miller, entered the bedroom and closed the door. Victim states that Holly and Nathan were in the living room sleeping on the fold out couch bed. The victim stated the baby was against the wall and she was to the outside of the bed. Jason told her to scoot over and he laid down and pulled the victim’s left leg and placed it between his legs and lifted up her shirt.

The victim states she was wearing a tee shirt, shorts[,] and panties and the suspect was wearing a tee shirt, polo brand blue with two red stripes and blue jeans. Victim states he wore these clothes during the entire assault. The victim states the suspect lifted her tee shirt and began rubbing her stomach and breasts and kissing her on the lips. Suspect then got up and went to the restroom and came back in the bedroom and closed the door. Victim states she was lying on her back pretending to be asleep when suspect began kissing her on her tee tee over her shorts, suspect got on top of her and began humping on her body and kissing her on the lips. Shortly afterward suspect again went to the restroom and came back to the bed and spread her legs apart and pulled her shorts and panties to the side of her leg and used his finger to penetrate her place where she poo poos and marked the place on a drawing for Jennifer Mitchell where he penetrated her body. This drawing is in the custody of Jennifer Mitchell. The suspect pulled the victim[’]s arms up above her head and placed them around his neck and told her to keep this a secret. The suspect then took the victim’s hand and pulled it to his pants where he tried to place the victim’s hand on his “bad part” (penis). The victim states she pulled her hand away and the baby began to move around on the bed. The suspect then got up and took a pillow from the bed and laid down on the floor next to the table where the clock was and went to sleep. The victim states that the suspect did not put any body part or object into her “pee pee” (vagina)[,] but did pull on her “tee tee.”

While F.G.’s in court testimony is not identical in all aspects to Franklin’s account in her report of F.G.’s statement to police,⁷ the jury nonetheless remains the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. We iterate that we cannot declare that a conflict in the evidence justifies a new trial even were we to disagree with the jury’s resolution of the conflict. See Watson, 2006 WL 2956272, at *7. Furthermore, Appellant has not cited nor are we aware of any authority supporting the proposition that, as a matter of law, a witness’s statement to police carries a greater evidentiary weight than her in court testimony.

            We have reviewed the record in its entirety. Having done so, we conclude that the jury was entitled to find that F.G.’s live testimony was a more accurate portrayal of her experience than Franklin’s account of her statement to police or Appellant’s testimony with regard to what transpired on the date in question. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict. Appellant’s second issue is overruled.

Outcry Witness Testimony

            In his third issue, Appellant argues that the trial court erred in permitting hearsay testimony. Specifically, Appellant contends that the trial court improperly admitted the video taped interview of F.G. through the State’s witness, Jennifer Mitchell.

            As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a); Duran v. State, 163 S.W.3d 253, 256 (Tex. App.–Fort Worth 2005, no pet.) (Appellant failed to preserve error where he did not object to the outcry statement or to the outcry witness’s testimony concerning the outcry statement on the basis of reliability.).

            Appellant states in his brief that he timely objected and that his objection was overruled. However, the record indicates otherwise. Following F.G.’s testimony, the record indicates that the subject of F.G.’s video taped interview arose outside the jury’s presence. The State informed the trial court that it intended to offer the video tape as an exhibit.   The trial court asked Appellant if he would have any objection to it, to which Appellant responded, “Well, actually, I’m still trying to decide that, Your Honor.” Later, during Mitchell’s testimony, the State offered the videotaped interview. The trial court again asked Appellant if he had any objection to its admission. Appellant responded, “Your Honor, the defendant has no objection to this tape being exposed or presented to the jury.” We hold that Appellant failed to preserve the error of which he now complains on appeal. Appellant’s third issue is overruled.

Ineffective Assistance of Counsel

            In his fourth issue, Appellant argues that he received ineffective assistance of counsel. The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two-step analysis:

1.             Did the attorney’s performance fail to constitute “reasonably effective assistance,” i.e., did the defense attorney’s representation fall below an objective standard of reasonableness under prevailing professional norms?

2.             If so, was there a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings could have been different?

See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The test in Strickland is properly applied to the punishment phase of a noncapital case as well. See Hernandez, 988 S.W.2d at 772.

            A “reasonable probability” was defined by the Supreme Court as a “probability sufficient to undermine confidence in the outcome.” Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.

            After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney’s errors, the jury would have had a reasonable doubt about his guilt. Id.

            In the case at hand, Appellant proffers multiple reasons as to why his trial counsel’s actions fell below the professional norm. However, even assuming arguendo that the actions of Appellant’s trial counsel, as noted in Appellant’s brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id.

            Despite repeated readings of Appellant’s brief, we can uncover no argument addressing the second prong of the Strickland test. Rather, Appellant makes only the following argument that is possibly attributable to the second prong of Strickland:

This was a defensible case that was not supported by sufficient evidence to support a jury verdict of guilty, nor the assessed punishment of 15 years incarceration. That, in and of itself, represents the nature of the direct harm produced by the trial counsel conduct in the trial of this matter. With such serious deficiency in regard to the Appellant’s 6th amendment rights in regard to effective assistance of counsel, the trial court results should be vacated and this court issue a mandate for new trial.

We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant’s behalf that but for his counsel’s alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. We hold that Appellant has failed to meet his burden under Strickland. Appellant’s fourth issue is overruled.

Conclusion

            Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial court’s judgment.

                                                                                                   BRIAN HOYLE

                                                                                                               Justice

Opinion delivered November 15, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

¹ Appellant’s mother’s house had two bedrooms as well as a sleeper sofa.

² F.G. further testified that she was able to see because the light in the closet had been left on.

³ F.G. described “humping” as “moving on your body” as in what dogs do to one another.

⁴ Other witnesses also testified on behalf of the prosecution and the defense.

⁵ Appellant was charged with two counts of aggravated sexual assault—one count relating to the penetration of F.G.’s sexual organ with his finger and a second count relating to the penetration of F.G.’s anus with his finger. The jury found Appellant “not guilty” of the second count.

⁶ The trial court stated to Appellant that if he could provide a witness who would testify concerning allegations of sexual assault by D.B., such testimony would be accepted outside the jury’s presence.

⁷ But see Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (touching amounted to penetration where contact with victim’s anatomy could reasonably be regarded as more intrusive than contact with the victim’s outer vaginal lips).