W. C. McMullin v. State ( 2006 )

Affirmed and Memorandum Opinion filed December 28, 2006

Affirmed and Memorandum Opinion filed December 28, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01243-CR

____________

W.C. McMULLIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1012361

M E M O R A N D U M   O P I N I O N

Appellant W.C. McMullin was convicted of indecency with a child and sentenced to life in prison.  In four issues, he appeals his conviction arguing: (1) the trial court erred in overruling his objection to the prosecutor=s closing argument and (2) he received ineffective assistance of counsel.  We affirm.

Factual and Procedural Background

The complainant and her brother were visiting their aunt, Tara Crooms, in early December 2004 for a Christmas party.  After the party, the complainant=s parents had not picked up her and her brother, so they fell asleep on the sofa in Crooms=s living room. Crooms and her family went to sleep at approximately 11:30 that night.  At approximately 2:00 in the morning, one of Crooms=s children awakened her, and Crooms walked through the living room to get the child some juice.  When she entered the living room, she saw appellant, who was Crooms=s stepfather, and the complainant lying on the floor under a blanket.  When appellant saw Crooms, he threw the blanket off and ran into the bathroom.  Crooms testified that appellant=s pants were down, and he tried to pull them up as he ran to the bathroom.  Crooms questioned the complainant who told her that appellant had touched her Aprivate part@ and had made her touch his Aprivate part.@  Crooms called the police, who arrested appellant for indecency with a child.  Appellant was convicted, pleaded true to a prior conviction for indecency with a child, and was sentenced to life in prison.

Improper Closing Argument

In his first issue, appellant contends the trial court erred in overruling his objection to the following argument made by the prosecutor during the guilt-innocence phase:

Now the question that you now have to ask yourself is when you leave here when this case is over and you=re finally able to talk about this with your family, your friends, your neighbors, your loved ones, and they ask you what kind of case and you tell them the facts of the case, this is what [the complainant] told us happened, this is what Tara saw, are you really going tell [sic] them that you found him not guilty or B

[Defense counsel]: Your Honor, I would object to the Prosecutor asking for the jury to consider the effect upon other members in the community of their decision.

[Prosecutor]: It=s a plea for law enforcement, Judge.

THE COURT: Overruled.

Proper jury argument must fall within one of the following four categories:  (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) response to opposing counsel=s argument, or (4) plea for law enforcement.  Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992).  The State may not tell the jury that the community expects a guilty verdict or a particular punishment.  Cortez v. State, 683 S.W.2d 419, 420B21 (Tex. Crim. App. 1984); see also Goff v. State, 794 S.W.2d 126, 127 (Tex. App.CAustin 1990, pet. ref=d) (stating an improper argument results when the prosecutor suggests the community expects a conviction or punishment regardless of the evidence or the law).  The State, however, may argue the impact of the verdict on the community.  Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990).

In Cortez, the Court of Criminal Appeals set out an instructive list of arguments that had been condemned by the court as pleas for the jury to follow community sentiment:

AThe people of De Soto are asking the jury to convict this defendant.@

AThe people of this community expect you to put this man away, and the only way you can do it is to send [the defendant] to the electric chair.@

AI tell you, the people of Matagorda and Jackson counties are expecting you to do your duty in this case and assess the defendant=s punishment at death.@

ALook at this courtroomBit is crowded with Polk County people, demanding the death penalty for [the defendant].@

AThe people are present in this courtroom to see that this defendant gets punished.@

AThere are over a million people that stand between him and the penitentiary.  They=d want him to go there if they knew what he did.@

AThe people of Nueces County expect you to put this man away.@

AThe jury ought to convict the defendant because the people of Denison desire it.@

683 S.W.2d at 421 (internal citations omitted).

Not every reference to the community necessarily constitutes an improper appeal to community desires.  In the arguments noted to be improper in Cortez, the prosecutors argued that the jury should convict the defendant because the community desired it, regardless of the evidence or the law.  When the prosecutor, as in this case, argues that the community desires a rational verdict, or one for law enforcement, the argument is not improper.  See Goff, 794 S.W.2d at 127.  The prosecutor did not ask the jury to convict appellant because the community desired it; therefore, the comments were a plea for law enforcement and were proper jury argument.  We overrule appellant=s first issue.

Ineffective Assistance of Counsel

In his remaining issues, appellant contends he received ineffective assistance of counsel because his trial counsel failed to object to the prosecutor=s closing argument and certain punishment evidence admitted during Tara Crooms=s testimony.

Standard of Review

To prove ineffective assistance of counsel, appellant must demonstrate that his counsel=s performance was deficient because it fell below an objective standard of reasonableness, and there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  Whether this standard has been met is to be judged by the totality of the representation rather than by isolated acts or omissions of counsel.  Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995).  Appellant must prove ineffectiveness by a preponderance of the evidence.  Id.  There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel acted in the way that he did.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  In the absence of evidence regarding counsel=s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel.  Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003).

Here, appellant did not allege ineffective assistance in a motion for new trial, and the record contains no explanation for counsel=s conduct.  We may therefore reverse only if Athe conduct was so outrageous that no competent attorney would have engaged in it.@  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). 

Prosecutor=s Argument

In his second issue, appellant contends he received ineffective assistance of counsel because trial counsel failed to object to the following closing argument:

And, folks, you ought to know that he knew what was going on because as soon as Tara walked in that room he jumped up, tried to put his pants on and ran to the restroom.  If he didn=t know what was going on, why would he do that?  If he didn=t realize that was happening, why would he do that?

And you know that that happened because it is uncontroverted.  It is unquestioned.  You know it.  You know in it [sic] your hearts and you know it in your minds.  

Appellant argues that the prosecutor=s argument was objectionable because it was a direct comment on appellant=s failure to testify.  A prosecutor=s comment on the defendant=s failure to testify is manifestly improper argument.  Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003).  When a defendant elects not to testify, his silence is not a proper subject for either direct or indirect comment by the prosecutor.  Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim. App. 1984).  If the challenged remarks could have only been supplied by the defendant, then such an argument is tantamount to a direct comment on the defendant=s failure to testify, and the conviction must be reversed.  Cook v. State, 702 S.W.2d 597, 599 (Tex. Crim. App. 1984).

The State=s closing argument neither directly, nor indirectly, commented on appellant=s failure to testify.  The argument was a response to appellant=s argument.  In closing argument, appellant argued that any inappropriate touching was accidental due to appellant=s level of intoxication:

You have a little girl sleeping on the floor with her grandfather and maybe because he is so drunk some untoward touching does occur.  That=s a possibility.  The State has to convince you beyond a reasonable doubt that it was his conscious intentional desire.

The prosecutor responded to appellant=s theory by pointing out that appellant had not controverted the act, but merely his intent.  Response to opposing counsel=s argument is a permissible area of jury argument.  Canales, 98 S.W.3d at 695. Therefore, because the prosecutor=s argument was permissible, counsel did not render ineffective assistance in failing to object to it.  We overrule appellant=s second issue.

Punishment Evidence

In his third issue, appellant contends he was denied his right to effective assistance of counsel when trial counsel failed to object to punishment evidence from Tara Crooms that was outside her personal knowledge. On redirect examination, the State asked Crooms whether she knew appellant had been convicted of indecency with a child in 1989.  Crooms answered that she did not know about it until the detective on this case performed a background check and told her about it.  Crooms then testified as follows:

Q. [by the State]: So the indecency with a child that he went to prison for in ``89, the victim in that case, was that a family member of y=all=s or do you know?

A.  I=m thinking.  I=m guessing it maybe was his first daughter.  That=s what I=m thinking. 

Q.  Do you know the name ALakiesha Sams@?

A.  Yes, sir, I think that=s his stepdaughter=s niece or aunt. 

Appellant contends trial counsel erred in failing to object to Crooms=s testimony on the ground that she did not have personal knowledge of the facts.  Rule 602 prohibits a witness from testifying to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  Tex. R. Evid. 602.  In this case, the State established that Crooms learned of the previous conviction from the detective in charge of this case.  She did not testify to facts that were not within her personal knowledge.  She stated that she was Athinking@ she knew the victim was appellant=s first daughter, but did not state she knew that fact. 

Appellant contends he was harmed by appellant=s failure to object because, through Crooms=s testimony, the State was permitted to introduce details of an extraneous offense.  At the punishment phase, evidence may be offered as to any matter the court deems relevant to sentencing, including evidence of any other extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant regardless of whether he has previously been charged or finally convicted of the crime or act.  Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a).  Crooms=s testimony about the details of the offense was admissible, and trial counsel did not render ineffective assistance by failing to object.  See Yates v. State, 917 S.W.2d 915, 921 (Tex. App.CCorpus Christi 1996, pet. ref=d) (holding that because article 37.07 ' 3(a) provides for the admission of details of prior offenses, counsel did not render ineffective assistance in failing to object to the admission of such details).  We overrule appellant=s third issue.

In his fourth issue, appellant contends he was denied effective assistance of counsel because trial counsel failed to object to extraneous victim impact testimony.  During the punishment phase, Tara Crooms testified that appellant had sexually abused her from the age of seven until she was a senior in high school.  Crooms also testified as to how her life had been affected by the abuse she suffered and the abuse suffered by the complainant. 

Victim impact evidence is generally admissible at the punishment phase when that evidence has some bearing on the defendant=s personal responsibility and moral culpability. Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2003).  Because it is irrelevant, victim impact evidence with respect to a victim not named in the indictment is not admissible.  Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005).  Evidence of the impact of appellant=s abuse of the complainant was admissible, but Crooms=s testimony about the impact of appellant=s abuse on her was inadmissible.  Crooms=s testimony about the impact of appellant=s abuse on her life was intertwined with her testimony about the impact of appellant=s abuse on the complainant.

Although counsel failed to object to inadmissible evidence, there may have been strategic reasons for not objecting to the admission of Crooms=s testimony.  We may not, however, speculate on counsel=s motives in the face of a silent record.  See Thompson, 9 S.W.3d at 814.  We cannot say that, in failing to object to Crooms=s testimony, trial counsel=s conduct was Aso outrageous that no competent attorney would have engaged in it.@  See Garcia, 57 S.W.3d at 440.  We overrule appellant=s fourth issue.

We affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed December 28, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).