Donald David Hetherington v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00189-CR
Donald David Hetherington § From the 297th District Court
§ of Tarrant County (1140609D)
v. § January 17, 2013
§ Opinion by Justice Gabriel
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Gabriel
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00189-CR
DONALD DAVID HETHERINGTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Introduction
Appellant Donald David Hetherington appeals his conviction for sexual
assault of a child, arguing in three points that his lawyer was ineffective and that
the trial court abused its discretion by admitting extraneous-offense evidence and
by issuing a limiting instruction of insufficient scope. We affirm.
1
See Tex. R. App. P. 47.4.
2
Background Facts and Procedural History
As she walked past the living room, the complainant’s mother (Mom) saw
Appellant’s face buried in her sixteen-year-old son’s lap. Appellant held very still
as Mom gestured for her son to pull up his pants and follow her to the bedroom,
where she ushered him into a closet, told him to stay put, and called the police.
She then went back and confronted Appellant. He apologized as she screamed
at him and escorted him from the house at gunpoint. Appellant was later
arrested and tried for sexual assault of a child.
At trial, a witness for the State testified that, approximately twenty-two
years before, Appellant had committed similar misconduct against him when the
witness was twelve years old.
The jury found Appellant guilty and assessed his punishment at ten years’
confinement. The trial court sentenced Appellant accordingly.
Extraneous-Offense Evidence
In his first point, Appellant claims that the trial court erred by admitting the
prior misconduct evidence during guilt-innocence and that the erroneous
admission caused him harm. Appellant bases his claim on rules of evidence
404(b) and 403. See Tex. R. Evid. 403, 404(b).
The standard of review is abuse of discretion, which means that we must
affirm the trial court’s ruling if it is within the zone of reasonable disagreement.
De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009);
3
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
reh’g).
The State contends that (1) evidence that Appellant had once before
molested a child was admissible under rule 404(b) because Appellant opened
the door and (2) the trial court properly balanced the probative value of the
evidence against its potential for unfair prejudice under rule 403. The State
claims that Appellant pushed against the door first during his portion of voir dire,
when his lawyer discussed witness credibility with the venire. One panel
member (“A”) had suggested that a witness might color his or her testimony one
way or another depending on how the witness perceived the “payoff” to that
testimony. He offered the example of a police-brutality case in which he
surmised that he would discount testimony from the officer’s partner if he thought
the witness was reluctant to impugn his partner. Appellant’s counsel followed A’s
input with the following:
[DEFENSE COUNSEL]: Thank you. And I think a lot of what
Mr. [A] was talking about was motive to, maybe, tell an untruth.
Mr. [B], have you ever seen those billboards going down the
road that say[ ]: Noteboom, we sue sex offenders?
VENIREPERSON [B]: Yes.
[DEFENSE COUNSEL]: Okay. Now, what kind of case would
that be if you were suing somebody or you were accused of in a civil
case? What kind of burden going back?
VENIREPERSON [B]: The burden would be––
[DEFENSE COUNSEL]: Preponderance of the evidence.
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VENIREPERSON [B]: Exactly.
[DEFENSE COUNSEL]: That it probably happened. Okay?
But if you’re able to show that it probably happened, in a civil case,
you get that payoff that Mr. [A] was talking about. Wouldn’t you
agree?
VENIREPERSON [A]: Yes.
[DEFENSE COUNSEL]: Okay. So could that be a reason,
when judging someone’s credibility, that you might want to be a little
concerned about what they’re telling you like Mr. [A] was talking
about?
Appellant’s counsel revisited this issue with Mom on cross-examination
when he asked her whether she had contacted a law firm about filing suit:
Q (By [DEFENSE COUNSEL]) [Mom], after––after this alleged
incident, did you ever contact a law firm regarding filing a civil suit
regarding this incident?
A Did I? No, sir, I did not.
Q Okay. Did anyone in your family ever contact a law firm
regarding filing a civil suit?
A No.
The prosecutor asked for a bench conference to flesh out Appellant’s
purpose in pursuing this line of questioning:
[PROSECUTOR]: Your Honor, I just wanted to make it clear
on the record. Is there some specific matter that they’re admitting? I
want to see if I have an objection, and I don’t know what their theory
is so I don’t know whether I have one.
[DEFENSE COUNSEL]: Well, obviously, Your Honor, if there
is any other motivation to bring this case, then I think––you know,
monetary issues or pecuniary interests, I think that’s definitely a
theory that we should be able to explore.
5
[PROSECUTOR]: Is the Defense suggesting that it would be
admissible under the theory of the motive here being––
[DEFENSE COUNSEL]: Bias or motive to testify.
[PROSECUTOR]: ––greed or desire for money? Is that––
[DEFENSE COUNSEL]: I mean, if you want to phrase it like
that, that’s fine. I think I’ve––
[PROSECUTOR]: Am I being accurate though? That’s what
I’m asking.
[DEFENSE COUNSEL]: That’s not an incorrect way to phrase
it.
[PROSECUTOR]: Okay. I just wanted to make clear.
Appellant continued Mom’s cross-examination as follows:
Q (By [DEFENSE COUNSEL]) Okay. [Mom], you understand
that you are under oath and that you––you swore an oath to the
Court to tell the truth––
A That’s correct.
.....
Q Okay. Are you familiar with the Noteboom Firm?
A Yes, I am.
Q Okay. And is it your testimony today that you, or anyone
connected to you, has never contacted the Noteboom Firm
regarding this particular incident?
A No. I disagree with that.
Q You disagree with what?
A That somebody connected to me did, but that was not the
question the first time you asked me.
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Q Okay. Did someone connected to you or your family contact
the Noteboom Firm on your behalf?
A Yes.
Q Okay. Who was that?
A Thomas Stephens.
Q Okay. And who is Thomas Stephens? How is he related to
you?
A He’s a lawyer out of Houston.
Q Okay. How did you––did you contact––did you reach out to
Mr. Stephens?
A Yes, because he was a friend.
.....
Q Okay. Did you––did you contact him regarding the possibility
of bringing a civil suit?
A No, I did not.
Q . . . . [D]o you know what . . . particular law Mr. Stephens
practices?
A Real estate.
.....
Q Did you believe that you possibly needed legal representation
in this matter?
A Yes.
Q Okay. Why would that be?
A Because I didn’t know what else to do so––I mean, this was a
serious matter.
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Q Okay. And did you and Mr. Stephens––did you––did you
even discuss the possibility of filing a civil suit against [Appellant]?
A No.
Q You never discussed it?
A I mean, I didn’t discuss it with him, no.
Q Okay. Did he ever discuss it with you?
A No.
Q All right. How––how is that you know that he contacted the
Noteboom Firm?
A Because he told me that there was lawyers here who dealt
with this kind of situation and that Noteboom was one of a well-
renowned law office here in our town.
Q Okay. So did he––so how many conversations did you have
with Mr. Stephens regarding this?
A I don’t know how many. It wasn’t many. I mean, I talked to
him a couple of times.
Q And so I’m just going to assume the second time that you
guys talked he told you that he contacted the Noteboom Firm on
your behalf?
A With them, yes.
Q Okay. And then what did y’all discuss?
A We really didn’t discuss anything, other than him––or, I’m
sorry, that he could fly in and, you know, stand by my side and do
the talking for me because I’m illiterate to what lawyers do and what
y’all talk about and––
Appellant’s counsel then asked Mom questions about whether she had
invited Appellant to spend the night at their home, knowing that he regularly
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carried large amounts of cash and wore lots of jewelry, and whether she had had
trouble paying her bills and supporting her three children. He then asked her
about another lawsuit, and when that question drew a relevancy objection, he
stated in front of the jury that he was entitled “to explore the fact that she may be
a litigious witness.”
Given the record before us, we hold that it was within the zone of
reasonable disagreement for the trial court to conclude that evidence about
Appellant’s prior misconduct with another teenager had relevancy apart from
character conformity because counsel’s questions exploring a civil lawsuit
opened the door to evidence offered to rebut the implication that Mom had
induced her son to fabricate charges against Appellant in order to create grounds
for a lawsuit with a potential financial payoff. Accordingly, to the extent it is
based on rule 404(b), we overrule Appellant’s first point. See Wheeler v. State,
67 S.W.3d 879, 887–88 (Tex. Crim. App. 2002).
Having held that the extraneous-offense evidence was admissible under
404(b), we must decide whether it was within the trial court’s discretion to
conclude that its probative value was not substantially outweighed by the
potential for unfair prejudice. See Tex. R. Evid. 403. In conducting a rule 403
analysis, we must balance the inherent probative force of the complained-of
evidence together with the proponent’s need for it against any tendency it had to
suggest a decision on an improper basis, such as emotion, any tendency it had
to confuse or distract the jury from the main issues, any possibility the jury might
9
have given it undue weight, and whether its presentation consumed an inordinate
amount of time or merely repeated evidence that was already admitted. See
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
Logically, evidence that Appellant had previously molested a teenage boy
in the same way as he was tried for in this case is inherently probative. See
Dennis v. State, 178 S.W.3d 172, 179–80 (Tex. App.––Houston [1st Dist.] 2005,
pet. ref’d); 1 Steven Goode et al., Texas Practice Series: Guide to the Texas
Rules of Evidence § 404.2 (3d ed. 2002) (“Evidence of character offered to prove
conduct or a state of mind conforming to that character is logically relevant.”)
Further, the trial court reasonably could have concluded that the State’s need for
the evidence was substantial. As discussed above, Appellant raised questions
about the credibility of the State’s main witnesses, suggesting that Mom might
have put her son up to bringing the charges in hopes of monetary gain. This
suggestion, combined with the lack of physical evidence to corroborate Mom and
her son’s testimony, enhanced the State’s need for evidence that Appellant had
done the same thing to another boy in the past. We hold that these factors weigh
in favor of admissibility.
On the other hand, logically, evidence of another sexual assault against a
child in the past would tend to inflame a jury and suggest a decision based on
emotion. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.––Waco 2009,
pet. ref’d). This factor weighs against the trial court’s decision.
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But we do not think the evidence had any tendency to confuse or distract
the jurors from the main issues, that they might have given it undue weight, or
that its presentation consumed an inordinate amount of time or merely repeated
evidence that was already admitted. See Gigliobianco, 210 S.W.3d at 641–42.
As the State points out, the witness’s testimony about the prior offense occupies
very few pages of a 340-page record on guilt-innocence. This factor weighs in
favor of admissibility.
In conclusion, we hold that the trial court’s balancing under rule 403 was
within the zone of reasonable disagreement and that the trial court did not,
therefore, abuse its discretion by concluding that the danger of unfair prejudice
did not substantially outweigh probative value. See Tex. R. Evid. 403; Roberts v.
State, No. 02-10-00266-CR, 2011 WL 5607620, at *5 (Tex. App.––Fort Worth
Nov. 17, 2011, pet. ref’d) (mem. op., not designated for publication); Dial v. State,
No. 05-09-00741-CR, 2010 WL 4705529, at *5 (Tex. App.––Dallas Nov. 22,
2010, no pet.) (not designated for publication). Accordingly, we overrule the
remainder of Appellant’s first point.
Limiting Instruction
In his second point, Appellant contends that the trial court violated rule of
evidence 105(a) by giving a limiting instruction that did not restrict the
extraneous-offense evidence to its proper scope.
11
The State responds that because the evidence was initially admitted
without a limiting instruction, any error with regard to the scope of the limiting
instruction was forfeited, and Appellant was not harmed.
Rule 105(a) of the rules of evidence provides in pertinent part that
[w]hen evidence which is admissible . . . for one purpose but not
admissible . . . for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct
the jury accordingly; but, in the absence of such request the court’s
action in admitting such evidence without limitation shall not be a
ground for complaint on appeal.
Tex. R. Evid. 105(a).
Citing Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008);
Hammock v. State, 46 S.W.3d 889, 892–95 (Tex. Crim. App. 2001); and Martin v.
State, 176 S.W.3d 887, 898–99 (Tex. App.––Fort Worth 2005, no pet.), the State
argues that the trial court did not give a limiting instruction at the time the
extraneous offense was admitted but waited until immediately after the witness
testified. We do not read the cases cited by the State to require that a limiting
instruction must be given before testimony if a defendant desires the testimony to
be given limited consideration; rather the cases simply instruct that a defendant’s
failure to request a limiting instruction at the time evidence is presented renders
the evidence admissible for all purposes and relieves the trial judge of any
obligation to include a limiting instruction in the jury charge. See Williams, 273
S.W.3d at 230; Hammock, 46 S.W.3d at 892–95; Martin, 176 S.W.3d at 899.
12
Our review of the record shows that Appellant requested a limiting
instruction before the witness testified about the extraneous offense and that the
trial court gave one immediately on the heels of the complained-of testimony.
Accordingly, we disagree with the State that the evidence was admitted without a
limiting instruction.
The State concedes that the limiting instruction the trial court gave was
incorrect. Then, citing Owen v. State, Nos. 13-10-00417-CR, 13-10-00418-CR,
2011 WL 5515548 (Tex. App.––Corpus Christi Nov. 10, 2011, pet. ref’d) (mem.
op., not designated for publication), and Moore v. State, 339 S.W.3d 365, 370–71
(Tex. App.––Amarillo 2011, pet. granted) (op. after remand), aff’d as modified,
371 S.W.3d 221 (Tex. Crim. App. 2012), the State contends that because
Appellant did not object to the oral limiting instruction or to the written one given
in the jury charge (of which Appellant does not complain in his brief) the question
becomes whether Appellant suffered egregious harm.
Because Appellant failed to preserve a complaint that the trial court gave
an erroneous limiting instruction during trial, we need not consider either the
propriety of that instruction or whatever harm it may have caused. Those issues
are not before us. As for the instruction that the trial court gave in the jury
charge, however, we agree with the State that the remaining issue is whether the
jury charge caused Appellant egregious harm.
We also agree with the State that Appellant has failed to demonstrate that
the trial court’s limiting instruction caused him egregious harm. The State points
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to an unpublished case from the Austin Court of Appeals that examined the same
issue presented here. In Tobar v. State, the district court had admitted
extraneous offense evidence to rebut a claim of recent fabrication, but instead of
limiting the evidence to that purpose, it had instructed the jury to restrict the
evidence to the purposes set out in rule 404(b), that is, motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
No. 03-05-00521-CR, 2006 WL 1649010, at *3 (Tex. App.––Austin June 16,
2006, no pet.) (mem. op., not designated for publication); see Tex. R. Evid.
404(b). Because the instruction the trial court gave in Tobar prohibited the jury’s
consideration of the evidence for any reason other than those specifically
identified, and because it did not identify rebutting a claim of recent fabrication as
one of the reasons for consideration, the court of appeals held that the instruction
given actually accrued to the appellant’s benefit. Tobar, 2006 WL 1649010, at
*6. Consequently, that court held that the instruction could not have caused the
appellant any harm, let alone egregious harm. Id.
Here, the trial court instructed the jury, immediately after the witness
testified and in its charge on guilt-innocence, to consider the extraneous-offense
testimony “only . . . in determining the motive, opportunity, intent, plan and
knowledge of the defendant in relation to the offense on trial and . . . not . . . for
any other purpose.” Because the instruction set out an exclusive list of the
purposes for which the jury could consider the extraneous-offense testimony and
because that list did not include considering the evidence to rebut a claim of
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fabrication, the jury was not allowed to consider the evidence for that purpose.
Because the instruction prohibited the jury from using the evidence to rebut
Appellant’s implication that the charges had been fabricated to form the basis of
a civil lawsuit, the implication was not rebutted. Therefore, the instruction helped
Appellant rather than harmed him. Accordingly, we overrule Appellant’s second
point.
Trial Strategy
In his third point, Appellant faults his trial attorney for employing a strategy
that permitted the State to offer and have admitted the extraneous-offense
evidence of which Appellant complains in his first point. To establish ineffective
assistance of counsel, the appellant must show by a preponderance of the
evidence that his counsel’s representation fell below the standard of prevailing
professional norms and that there is a reasonable probability that, but for
counsel’s deficiency, the result of the trial would have been different. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Davis v. State,
278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In other words, for a claim of
ineffective assistance of counsel to succeed, the record must demonstrate both
deficient performance by counsel and prejudice suffered by the defendant.
Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffective-
assistance claim must be “firmly founded in the record” and “the record must
affirmatively demonstrate” the meritorious nature of the claim. Id. (quoting
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
15
In evaluating the effectiveness of counsel under the deficient-performance
prong, we look to the totality of the representation and the particular
circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether
counsel’s assistance was reasonable under all the circumstances and prevailing
professional norms at the time of the alleged error. See Strickland, 466 U.S. at
688–89, 104 S. Ct. at 2065. Review of counsel’s representation is highly
deferential, and the reviewing court indulges a strong presumption that counsel’s
conduct fell within a wide range of reasonable representation. Salinas v. State,
163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001).
Trial counsel “should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593
(quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial
counsel is not given that opportunity, then the appellate court should not find
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)). If counsel’s reasons for his conduct
do not appear in the record and there is at least the possibility that the conduct
could have been grounded in legitimate trial strategy, we will defer to counsel’s
decisions and deny relief on an ineffective-assistance claim on direct appeal.
Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007); Ortiz v. State, 93
S.W.3d 79, 88–89 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 998 (2003).
16
We note that although Appellant filed a motion for new trial, in it he did not
challenge the effectiveness of his trial counsel. We also note that there is no
record that the motion for new trial was presented to the trial court or that the trial
court conducted a hearing on it.
Moreover, Appellant does not dispute that his trial counsel engaged in a
strategy and that his strategy was to cast doubt on Mom’s (and by extension, the
complainant’s) credibility; he contends, however, that counsel’s strategy was
outrageous and one that no reasonably professional attorney would have
pursued. But a strategy is not outrageous simply because it fails. See Flores v.
State, 18 S.W.3d 796, 800 (Tex. App.––Austin 2000, no pet.). Here, counsel
could have calculated that the risk of his opening the door to a fairly remote
extraneous offense was slightly outweighed by the payoff of having the jury
wonder whether Mom might have put her son up to bringing charges against
Appellant who, particularly because he had a prior offense, was vulnerable to
charges of sexual assault. In any event, we refuse to second guess counsel’s
trial strategy simply because it failed to result in an acquittal for his client. See id.
Accordingly, on the record presented here, we cannot say that Appellant
received ineffective assistance, and we overrule Appellant’s third point. See
Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813.
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Conclusion
Having overruled all of Appellant’s points on appeal, we affirm the
judgment of the trial court.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 17, 2013
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