Eric Donald Anderson v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00306-CR
ERIC DONALD ANDERSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2006-1453-C2
MEMORANDUM OPINION
A jury convicted Eric Donald Anderson of two counts of aggravated sexual
assault and assessed his punishment at ninety-nine years’ imprisonment on each count.
Anderson contends in two issues that: (1) the court’s guilt-innocence charge
impermissibly commented on the evidence; and (2) he received ineffective assistance of
counsel. We will affirm.
Guilt-Innocence Charge
The State tried Anderson for four counts of aggravated sexual assault. 1 Because
the State offered evidence that Anderson sexually assaulted the complainant A.F. on
numerous occasions, the State was required to elect the particular alleged assaults on
which it would rely for convictions. The court instructed the jury regarding the State’s
elections for Counts 1 and 3 as follows:
To prove the offenses [sic] alleged in the indictment in Count 1, the
State has elected to proceed on the alleged event that occurred in the
living room on the love seat, in which the defendant, Eric Donald
Anderson, allegedly committed the offense, if any.
To prove the offense alleged in the indictment in Count 3, the State
has elected to proceed on the alleged event that occurred after the drive to
Temple, in which the defendant, Eric Donald Anderson, allegedly
committed the offense, if any.
Because Anderson did not object to the court’s charge, he must establish that
these instructions are erroneous and that he suffered egregious harm from their
inclusion in the charge. Witt v. State, 237 S.W.3d 394, 398 (Tex. App.—Waco 2007, pet.
ref’d). “A charge improperly comments on the evidence if it ‘assumes the truth of a
controverted issue.’” Hanson v. State, 180 S.W.3d 726, 728 (Tex. App.—Waco 2005, no
pet.) (quoting Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986)).
The instruction on Count 1 does assume that there was a love seat in the living
room, which was undisputed. However, the instruction does not assume that a sexual
assault actually occurred on that love seat. Thus, this instruction does not assume the
truth of a controverted issue. See Whaley, 717 S.W.2d at 32; Hanson, 180 S.W.3d at 728.
1
The jury acquitted Anderson of the offenses alleged in Counts 2 and 4.
Anderson v. State Page 2
The instruction on Count 3 similarly assumes that someone drove to Temple
before Anderson allegedly assaulted A.F. However, it was undisputed that Anderson
drove A.F.’s mother to Temple to go to work on the occasion in question. Rather, the
parties disputed whether he smoked marijuana during the drive back from Temple and
whether he sexually assaulted A.F. afterward. The challenged instruction does not
assume that either of these actions occurred. Thus, the instruction does not assume the
truth of a controverted issue. Id.
Accordingly, we overrule Anderson’s first issue.
Ineffective Assistance
Anderson complains in his second issue that he received ineffective assistance of
counsel because trial counsel failed to: (1) object to the admission of evidence regarding
extraneous misconduct; (2) request a hearing to determine the proper outcry witness;
(3) object to the testimony of two witnesses who gave their opinion about the
truthfulness of A.F.’s testimony; (4) object to the portions of the charge addressed in the
first issue; and (5) object to the court reporter’s failure to record several bench
conferences and in-chamber conferences.
To prevail on an ineffective-assistance claim, an appellant must show by a
preponderance of the evidence that: (1) counsel’s performance was deficient and (2) the
deficient performance prejudiced the defense. Garza v. State, 213 S.W.3d 338, 347-48
(Tex. Crim. App. 2007). We begin with a “strong presumption” that counsel provided
reasonably professional assistance, and the defendant bears the burden of overcoming
this presumption. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). To
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do so, “the defendant must prove, by a preponderance of the evidence, that there is, in
fact, no plausible professional reason for a specific act or omission.” Bone v. State, 77
S.W.3d 828, 836 (Tex. Crim. App. 2002). Generally, the appellate record is insufficient to
satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Curry
v. State, 222 S.W.3d 745, 754 (Tex. App.—Waco 2007, pet. ref’d).
Extraneous Misconduct
Anderson argues that counsel was ineffective for failing to object to evidence that
he used marijuana, watched pornography, and was having an affair.
A.F. testified that Anderson smoked marijuana on the drive home from Temple
and kept asking whether she was going to let him have sex with her when they arrived.
She testified that he sexually assaulted her later that night after putting her younger
sister to bed. A.F.’s mother testified that, in a phone conversation two days after she
confronted Anderson with the allegations (which he initially denied), he expressed
remorse for what had happened and suggested that he may have been “drunk or high”
on one of the occasions when he sexually assaulted A.F.
A.F.’s testimony regarding Anderson’s marijuana usage was arguably admissible
as evidence of plan and preparation under Rule of Evidence 404(b). See TEX. R. EVID.
404(b); Hernandez v. State, 973 S.W.2d 787, 790 (Tex. App.—Austin 1998, pet. ref’d). His
statement to her mother that he may have been drunk or high when he sexually
assaulted A.F. was arguably admissible as same transaction contextual evidence. See
Gaconnet v. State, No. 04-98-00033-CR, 1999 Tex. App. LEXIS 7592, at *8-9 (Tex. App.—
San Antonio Oct. 13, 1999, pet. ref’d) (not designated for publication).
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A.F. also testified that, one morning when she sat down to watch television,
Anderson started watching a pornographic movie so she got up and left the room. Her
mother testified that Anderson had two or three pornographic DVD’s and that the two
of them watched one together on one occasion. This testimony was arguably
admissible as evidence of Anderson’s intent. See Sarabia v. State, 227 S.W.3d 320, 323-24
(Tex. App.—Fort Worth 2007, pet. ref’d).
Finally, A.F.’s mother testified that Anderson admitted to her after the fact that
he had been having a relationship with another woman during their relationship. This
evidence supported counsel’s apparent strategy of trying to show that A.F. had a
motive to lie. See Hammer v. State, 296 S.W.3d 555, 56-68 (Tex. Crim. App. 2009).
Plausible theories support the admission of the challenged testimony regarding
extraneous misconduct. The record is mostly silent regarding counsel’s strategy for not
objecting to this testimony. Thus, Anderson has failed to overcome the “strong
presumption” that counsel provided reasonably professional assistance when he did
not object to this testimony.
Outcry Witness
Anderson contends that he received ineffective assistance of counsel because
counsel failed to request a hearing to determine the proper outcry witness. Here,
Anderson complains that A.F.’s mother, a physician and a psychotherapist each
testified without objection regarding details of the offenses which A.F. told them.
A.F.’s mother was the outcry witness. The testimony of the physician and of the
psychotherapist regarding A.F.’s statements to them was admissible as an exception to
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the hearsay rule for statements made for purposes of medical diagnosis or treatment.
See TEX. R. EVID. 803(4); Munoz v. State, 288 S.W.3d 55, 58-60 (Tex. App.—Houston [1st
Dist.] 2009, no pet.); Guzman v. State, 253 S.W.3d 306, 307-09 (Tex. App.—Waco 2008, no
pet.). Thus, Anderson has failed to overcome the “strong presumption” that counsel
provided reasonably professional assistance when he did not object to this testimony.
Opinions About A.F.’s Veracity
Anderson argues that counsel was ineffective for failing to object to the
testimony of two witnesses who gave their opinion about the truthfulness of A.F.’s
testimony.
Jeredith Jones testified about the steps she took as a CPS investigator in response
to the referral received concerning A.F.’s allegations. When asked whether she had any
additional contact with law enforcement after interviewing A.F. and her mother, she
answered, “I spoke with the detective who was assigned to the case to let her know that
I felt that the allegations were valid and needed further follow-up.”
Anderson contends that this statement is inadmissible because it constitutes an
imadmissible opinion regarding his guilt and an inadmissible opinion regarding A.F.’s
veracity. He cites Boyde v. State, 513 S.W.2d 588, 589-90 (Tex. Crim. App. 1974), and
Graves v. State, 994 S.W.2d 238, 247 (Tex. App.—Corpus Christi 1999, pet. ref’d,
untimely filed), to support the first contention, and he cites Yount v. State, 872 S.W.2d
706, 711 (Tex. Crim. App. 1993), to support the second contention.
In Boyde, a police officer was asked whether, at the time of arrest, he was “totally
satisfied” that the defendant was guilty and whether he knew of any evidence which
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would tend to exonerate the defendant or show that he was not guilty. The Court of
Criminal Appeals held that this was improper. See Boyde, 513 S.W.2d at 590.
In Graves, a deputy testified that she investigated sex crimes and does not file
charges when the evidence does not implicate a suspect. 994 S.W.2d at 247. She further
testified that, based on her investigation of Graves, she identified four sexual assault
victims. Id. The court of appeals rejected Graves’s contention that this was tantamount
to giving an opinion as to his guilt.
Instead, the inference that may be drawn from the complained of
testimony is that there was sufficient evidence to bring formal charges
against appellant. Merely because an officer testifies there is evidence for
charges to be brought against a defendant, does not suggest that the
testimony goes to the defendant’s guilt.
Id.
Unlike the officer in Boyde, Johnson was not asked to give an opinion regarding
Anderson’s guilt. Rather, her testimony is more similar to that in Graves which was
found to be permissible.
In Yount, a physician was asked in how many of the hundreds of examinations
she had performed had she found the allegations to be invalid. She replied, “When you
mean invalid, that the child was not telling the truth?” The prosecutor responded,
“Right,” and over objection she answered, “I have seen very few cases where the child
was actually not telling the truth.” Yount, 872 S.W.2d at 707-08.
The Fort Worth Court has explained that Yount addresses “the admissibility of
direct testimony as to the truthfulness of the child complainant.” See Salinas v. State, 166
S.W.3d 368, 370 (Tex. App.—Fort Worth 2005, pet. ref’d). Unlike the physician in Yount,
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Johnson was not asked whether she thought A.F. was telling the truth. Her testimony
that she felt that the allegations were valid, particularly when viewed in context
(namely, her explanation of the steps in the investigation), is not “direct testimony”
regarding A.F.’s truthfulness.
Dr. Ann Sims testified that her findings from a physical examination of A.F. were
not inconsistent with the sexual abuse history A.F. told her. Anderson argues that, by
doing so, she gave her personal opinion that he sexually assaulted A.F. We disagree.
Unlike the officer in Boyde, Sims was not asked whether she believed Anderson
was guilty. Rather, she was asked whether her findings were consistent with the
allegations. Such testimony is not objectionable. See Reyes v. State, 274 S.W.3d 724, 730
(Tex. App.—San Antonio 2008, pet. ref’d).
Accordingly, Anderson has failed to overcome the “strong presumption” that
counsel provided reasonably professional assistance when he did not object to
Johnson’s and Sims’s testimony.
Comments on Evidence
Anderson complains that he received ineffective assistance of counsel because
counsel failed to object to the instructions we discussed in addressing his first issue.
However, we determined that these instructions were not objectionable. Thus,
Anderson has failed to overcome the “strong presumption” that counsel provided
reasonably professional assistance when he did not object to the challenged
instructions.
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Unrecorded Conferences
Finally, Anderson argues that counsel was ineffective for failing to object to the
court reporter’s failure to record various conferences conducted at the bench or in
chambers. He observes that “[t]hese unrecorded conferences created an unknown”
which “may have assisted Appellant on appeal.”
Anderson’s own argument demonstrates that he cannot prevail on this
contention in this direct appeal. He must establish that he was prejudiced by what
occurred during these unrecorded conferences. See Garza, 213 S.W.3d at 347-48. Yet he
concedes that what occurred there is “unknown” and only “may have assisted” him on
appeal. An ineffective assistance claim will not be sustained on the basis of mere
speculation. See Bone, 77 S.W.3d at 835; Howard v. State, 239 S.W.3d 359, 367 (Tex.
App.—San Antonio 2007, pet. ref’d); Curry, 222 S.W.3d at 754.
Accordingly, we overrule Anderson’s second issue.
Having overruled the issues presented, we affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed October 20, 2010
Do not publish
[CRPM]
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