Marvin Whinery v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-04-086 CR ____________________

MARVIN WHINERY, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 217th District Court Angelina County, Texas Trial Court Cause No. CR-23562

---

MEMORANDUM OPINION

A jury convicted Marvin Whinery of one count of aggravated sexual assault of a child and three counts of indecency with a child. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003), § 22.021(a)(1)(B)(v), (2)(B) (Vernon Supp. 2005). The sentences, to be served concurrently, totaled eighty years.

Appellant argues the evidence is legally and factually insufficient to support the jury's verdict. In a legal sufficiency review, we consider all the evidence in the light most favorable to the prosecution and then determine whether a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). In a factual sufficiency review, the evidence is considered in a neutral light. The reviewing court sets aside the verdict only if the evidence is so "clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met." Escamilla, 143 S.W.3d at 817.

Ms. Lumbley taught MF and LM in their fifth grade "puberty education class." In response to Ms. Lumbley's request to submit written questions, ten-year-old MF gave the teacher a note that stated "it is about my grandpa[.]" Lumbley then spoke with MF in private. MF told Lumbley that MF's grandfather touched her. Using a classroom poster, MF pointed to the female genitals. She told Ms. Lumbley the "touching" had been going on for a long time. MF then confided to Ms. Lumbley that her grandfather had also touched LM, another student in the class, and MF's two sisters, one of whom was a baby. When Lumbley asked LM about MF's note, LM said she knew MF's grandfather touched MF. Then LM "broke down," became "near hysterical," and stated MF's grandfather touched her too. Lumbley notified the school counselor who notified the police and Child Protective Services.

MF testified at trial that defendant touched her genitals, engaged in oral- genital and hand-to-genital contact with her, and showed her Playboy magazines and "porno" movies. LM testified defendant touched and rubbed her genitals. MW testified by videotape that defendant grabbed her and touched her (over her clothes) in the private area ⁽¹⁾ with his hands and fingers.

The grandmother of MF and MW testified the girls came to the grandparents' home almost every afternoon. She and appellant had gotten rid of all their Playboy-type magazines and "pornographic" movies before they moved to the Diboll area. According to the grandmother, MF was in trouble most of the time, "wouldn't mind," and frequently lied to get attention. She testified MF has influenced MW and LM.

Appellant denied committing the crimes. He acknowledged tickling MW, but never MF. Although he used to view pornographic movies and magazines, he stopped the practice when the kids and grandkids began moving in with him and his wife. As to why MF would make the accusations against him, appellant believed she was angry at him for disciplining her. He testified he has no idea why the other girls accused him.

Appellant's former daughter-in-law testified she trusts appellant with her children, but she knows he has watched pornography. She says MF lies. On cross-examination, the jury heard testimony the former daughter-in-law engaged in violent, sexual games with her ex-husband though she says she did not do so willingly, and she was good friends with a man imprisoned for aggravated sexual assault.

The daughter of the former daughter-in-law, MB, testified that a week after she reported her stepfather for sexually abusing her, MF said "she [MF] was going to tell the cops that either my Pawpaw or her dad -- that they sexually assaulted her so she can get as much attention as I did." "[MF] repeatedly said it for, like, a month." MB indicated MF was jealous of the attention MB was getting. The jury also heard testimony MB is emotionally unstable.

The evidence is legally and factually sufficient to support the jury's verdict. The jury could have found the essential elements of aggravated sexual assault and indecency with a child beyond a reasonable doubt. The girls' testimony is not so weak that the verdict is clearly wrong and unjust, and the contrary evidence -- that MF made up the allegations and influenced the other girls to go along with the story -- is not so strong that the beyond-a-reasonable-doubt standard of proof was not met. See generally Escamilla, 143 S.W.3d at 817.

Whinery also argues he was unfairly prejudiced by the prosecutor's question that referred to Whinery's son's conviction for sexual assault of a child. During the testimony of the CPS investigator, the following exchange occurred:

Q. [Prosecutor]: Are you familiar with the Defendant, Mr. Whinery?

A. I am. I met him one previous occasion whenever I accompanied a case worker to his home. We were investigating his son, Louie. And he was out on the porch. This was about two years ago. He was out on his porch, screaming at myself and my coworker from across the -- from across the street. He was yelling and cursing at us.

Q. And this was approximately two years ago?

A. Uh-huh.

Q. And do you recognize Mr. Whinery as the man in the courtroom, sitting next to [defense counsel]?

A. Yes.

Q. Where was his house at that time?

A. It was in the trailer park in Diboll.

Q. And you were in -- you were not investigating him; you were investigating his son, Louie?

A. Yes.

Q. And what was that for?

A. Sexual assault of a child.

[Defense Counsel]: Your Honor, I object to relevance.

[The Court]: Sustained.

[Defense Counsel]: I'd ask for a Motion to Strike.

[The Court]: I'll instruct the jury to disregard the last question and answer. Proceed.

Appellant's argument on appeal is, in substance, a claim of prosecutorial misconduct. The defendant objected at trial on relevancy grounds, not on prosecutorial misconduct grounds. Because the objection at trial does not comport with the complaint on appeal, appellant waived review of the prosecutorial misconduct issue. See Jeffley v. State, 38 S.W.3d 847, 861 (Tex. App.--Houston [14^th Dist.] 2001, pet. ref'd). The trial court sustained the relevance objection made by defendant, and upon defendant's request, the trial court instructed the jury to disregard the prosecutor's question and Soto's answer. Appellant received what he requested from the trial court. There is no error.

Whinery argues ineffective assistance of counsel, because his attorney failed to request a mistrial when the prosecutor asked why CPS was investigating defendant's son. To prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He must show counsel's performance was deficient and he was prejudiced by counsel's deficient performance. Id. at 694; see also Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003). The information concerning defendant's son also came in later through defense witness MB. MB explained MF wanted attention similar to what MB received for reporting that defendant's son sexually abused her. Ineffective assistance of counsel was not raised in the motion for new trial. The record does not reflect why trial counsel did not request a mistrial. The record on this direct appeal is undeveloped. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). On this record, we can only speculate on both sides of the issue. Without more, an appellate court "must presume that counsel acted pursuant to a reasonable trial strategy." Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004).

Appellant's three issues are overruled. The conviction is affirmed.

AFFIRMED.

_________________________________

DAVID GAULTNEY

Justice

Submitted on January 26, 2005

Opinion Delivered February 2, 2005

Do Not Publish

Before McKeithen, C.J., Gaultney, and Horton, JJ.

1.

In the interview with MW, the CPS caseworker used a picture of the female body. It is apparent from the caseworker's discussion with MW that the child indicated appellant touched MW's genitals.