James Jurek v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-261-CR AND NO. 3-93-262-CR





JAMES JUREK,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

NOS. 7834 & 7835, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

After the jury found appellant guilty of two offenses of aggravated sexual assault of a child, the court assessed punishment at confinement for ninety-nine years in each cause. Act of May 26, 1987, 70th Leg., R.S., ch. 573, § 1, 1987 Tex. Gen. Laws 2275, amended by Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, 1987 Tex. Gen. Laws 80 (Tex. Penal Code Ann. § 22.021, since amended). In a single point of error, appellant lists thirty acts or omissions on the part of his trial counsel at the guilt-innocence stage of the trial that he asserts denied him the effective assistance of counsel. We will reverse the convictions and remand for a new trial.

Appellant was charged in separate indictments with the sexual assault of his twin step-daughters by the penetration of the sexual organs of P.H. and A.H. with his sexual organ. The offenses were alleged to have occurred on or about July 24, 1992 and on or about July 26, 1992.

Thirteen-year-old A.H. testified that she slept in the same room with her twin sister P.H. A.H. related that on the night in question appellant woke her up by "putting his hand under my nightgown." Even though she said "No," appellant placed his penis in her mouth. Appellant then "started putting his penis in my vagina -- he got on top of me." Appellant told her if she did not keep her mouth shut he would "beat my mom."

P.H. testified that she heard A.H. cry and saw appellant on top of A.H. P.H. described how appellant had previously woken her up by putting his hand under her nightgown. Appellant threatened her if she did not remove her underwear. After having put his penis in her vagina and "moving up and down," appellant threatened to "kill all of us if I told."

Dr. Michael Mouw, a physician at Brackenridge Hospital in Austin, examined A.H. and P.H. on July 29, 1992. Dr. Mouw testified that his examinations showed that both girls had engaged in sexual intercourse. Dr. Mouw found no lacerations or other evidence of trauma.

Appellant denied having sexually assaulted his step-daughters. Appellant testified that his ex-wife forced A.H. and P.H. to testify about having been assaulted because she was mad at him for having reported her to the Department of Human Services for falsifying statements to that agency to obtain food stamps. Appellant stated that the girls were afraid of their mother because she had beaten them with a broomstick.

To sustain a claim that counsel's assistance was so defective as to require reversal, a defendant must first prove that counsel's performance was deficient by proving that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the defendant must show that the deficient performance prejudiced the defendant to such an extent that the defendant was deprived of a fair trial. Id. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) ("[W]e will follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom."); Shaw v. State, 874 S.W.2d 115, 118 (Tex. App.--Austin 1994, pet. ref'd) (applying the Strickland standards). The adequacy of the assistance is tested by the totality of the representation. Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983). A presumption exists in favor of counsel's conduct, and a defendant has the burden of disproving that under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689.

Appellant complains of his trial counsel's failure to file a motion in limine to exclude extraneous offenses and counsel's failure to object when the State introduced extraneous offenses. Appellant directs our attention to the testimony of Nancy Davis, appellant's ex-wife and mother of A.H. and P.H. Davis testified that appellant would "hit on me and beat on me -- put his foot on my throat -- knock the living fool out of me." Davis related that when she "came back home to get her things, he [appellant] had burned them all." All of the foregoing testimony came in without defense counsel voicing any objection. An objection by defense counsel would have shifted the burden to the State to show that the other crime, wrong or act had relevance apart from its tendency to prove character of a person in order to show that he acted in conformity therewith. Tex. R. Crim. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). Relevant evidence is defined as any evidence which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Crim. Evid. 401. Clearly, the testimony that appellant beat his wife and burned her things was not relevant to the offense of sexual assault of a child. We find that trial counsel's failure to file a motion in limine to exclude extraneous offenses and conduct coupled with his failure to object to their introduction fell below objective standards of reasonableness under prevailing professional norms and thus constituted deficient performance in representation of appellant at trial. See Ex parte Menchaca, 854 S.W.2d 128, 132 (Tex. Crim. App. 1993).

Appellant additionally asserts that the failure of his trial counsel to object to the prosecutor's incorrect statement of the law concerning the State's burden of proof constituted deficient representation. During voir dire examination, the prosecutor told the jury that he was going to give it a short version and a long version of the meaning of reasonable doubt. The short version was described by the prosecutor as passing the "guts test -- if you are really convinced of something, something very, very important, then you believe it in your gut, down here. You feel certain about it. That's what reasonable doubt means." The prosecutor then told the jury that the Court of Criminal Appeals "took it on themselves, after 150 years of jurisprudence to tell the jury what they already knew in the first place, which is what beyond a reasonable doubt is." The prosecutor continued by reading the definition of reasonable doubt (included in the trial court's charge) adopted by the Court of Criminal Appeals in Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991). The prosecutor then stated that the jury could read and understand the definition he had read, "or you can just use my gut check definition, that's fine too." After admonishing the jury to think about the evidence and discuss the evidence, the prosecutor concluded, "if you all feel good about your decision, you hand in an unanimous verdict. If you don't feel good about your decision, then one of you may have a reasonable doubt." Error does not lie in going beyond the court's charge, but lies in stating law contrary to the charge. Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982). We find that trial counsel was deficient in his representation of appellant by failing to object to the prosecutor's definition of reasonable doubt that was contrary to the law contained in the court's charge. See Dues v. State, 634 S.W.2d 304, 306 (Tex. Crim. App. 1982).

Appellant complains of his trial counsel's failure to object to the testimony of Dr. Cecil Reynolds concerning appellant's truthfulness. Dr. Reynolds, a licensed psychologist, testified that as a result of his psychological evaluation of appellant, the jury would not "be in a position to believe what he [appellant] says under oath." Expert testimony regarding the truthfulness of a witness is inadmissible under Texas Rules of Criminal Evidence 702. Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). The court in Yount reasoned that the use of expert testimony must be limited to situations in which the expert's knowledge and experience on a relevant issue are beyond that of an average juror. Id. at 710-11. We are persuaded that trial counsel's representation of appellant was deficient in failing to object to the psychologist's testimony that appellant could not be believed under oath.

Appellant further directs our attention to his trial counsel's failure to object to the prosecutor characterizing appellant as a "real life monster" on two occasions during opening statement to the jury. In Grant v. State, 472 S.W.2d 531 (Tex. Crim. App. 1971), the prosecutor persisted in referring to the defendant as a "beast." Id. at 532. The State's evidence showed that the defendant, who had been living with the mother of the child victim, took the ten-year-old victim to a vacant apartment in the early hours of the morning, forced her onto an old mattress, and attempted to have sexual intercourse with her. The court stated the argument was improper, but noted that the defendant received all the relief he requested when the court instructed the prosecutor to call the defendant by his name. The Grant court concluded that the argument was not so prejudicial under the facts of the case as to require the trial court to grant a mistrial without a request therefor. Id. at 533. In the instant cause, the prosecutor's characterization of appellant as a "real life monster" in his opening statement was clearly improper. Arguably, trial counsel's failure to object, request an instruction, and move for a mistrial, standing alone, may not constitute deficient representation under the facts of the instant cause. However, it is a factor we consider in reviewing the totality of defense counsel's representation of appellant in the trial court. See Ex parte Raborn, 658 S.W.2d at 605. We conclude that appellant's trial counsel made errors so serious that he was not functioning as the counsel guaranteed a defendant by the Sixth Amendment. Therefore, the first prong of Strickland is satisfied.

We must next determine whether trial counsel's deficient performance was prejudicial to the extent that appellant was denied a fair trial. Dues v. State, 634 S.W.2d 304 (Tex. Crim. App. 1982), is instructive in determining whether a prosecutor's misstatement of the law denies a defendant a fair trial. In Dues, the trial court overruled the defendant's objection to the prosecutor's statements during voir dire examination of the jury panel implying that intent was not a required element of the offense of terroristic threat. After noting that the defendant's intent is an essential element of the offense, the court concluded that the prosecutor's remarks denied the defendant a fair trial. Id. at 306. In the instant cause, the prosecutor's statement to the jury that his "gut checks" and "feel good" standards meant the same thing as the Court of Criminal Appeals' definition of reasonable doubt given in the court's charge was clearly a misstatement of the State's burden of proof.

Defense counsel's failure to object to the prosecutor's misstatement of the law coupled with counsel's failure to file a motion in limine and object to the introduction of extraneous offenses and conduct clearly deprived appellant of a fair trial. In Ex parte Menchaca, 854 S.W.2d 128 (Tex. Crim. App. 1993), defense counsel failed to file a motion in limine requesting the trial court to instruct the prosecutor not to elicit testimony concerning the defendant's probationary term, which had expired. Subsequently, trial counsel failed to object when the inadmissible prior conviction for rape was introduced and later referred to by the prosecutor in jury argument. The Menchaca court stated that a jury would be disinclined to believe the testimony of a defendant with a prior conviction and concluded that defense counsel's performance was deficient and sufficient to undermine the court's confidence in the verdict. Id. at 133.

Arguably, the admission of evidence of the offenses appellant committed against his ex-wife was not as damaging to appellant's credibility as the defendant's inadmissible conviction in Menchaca. However, the prejudice appellant suffered from the admission of these extraneous offenses was compounded by the aforementioned expert's unobjected to inadmissible testimony that the jury was not in a position to believe appellant under oath. Appellant's entire defense was based on his testimony denying the offenses and asserting that his ex-wife forced her daughters to testify to get back at him for reporting her to the Department of Human Services. The unobjected to characterization of appellant as a "real life monster" further undermined appellant's credibility.

We conclude that appellant's trial counsel's performance was so deficient that appellant was deprived of a fair trial. Since both steps of the Strickland test have been met, we hold that trial counsel's "omissions were outside the range of professionally competent assistance." Strickland, 466 U.S. at 690. ⁽¹⁾

The judgments are reversed and the causes remanded for a new trial.

Tom G. Davis, Justice

Before Justices Aboussie, B. A. Smith and Davis^*

Reversed and Remanded on Both Causes

Filed: December 21, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1.   We find it unnecessary to review the remaining alleged omissions by appellant's trial counsel.