Lagary Harrison v. State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-00-372 CR ____________________

LAGARY HARRISON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 96-11-01599-CR

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OPINION  

A jury convicted appellant of having committed aggravated sexual assault of a child, M.S. The jury sentenced appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of forty-five (45) years, and further assessed a fine of $10,000. This was appellant's second trial for the same offense as this Court reversed his previous conviction. See Harrison v. State, No. 09-97-143 CR, 1999 WL 233409 (Tex. App.--Beaumont April 21, 1999, no pet.) (not designated for publication). The offense date alleged was "on or about" May 6, 1995, with the victim being ten years' old at that time.   

Appellant is before us pro se, ⁽¹⁾ and presents us with nine appellate issues. Appellant groups these nine issues into three subparts. The first "grouping" contains the single complaint that the record evidence is factually insufficient to sustain his conviction. The second grouping consists of issues two through five essentially contending that he received ineffective assistance of counsel at trial. The final grouping of issues, six through nine, seems to complain of trial court error in "instructing" appellant's trial counsel to have his witness clarify the word "prone" for the jury.   

In conducting a factual sufficiency review, we begin with the presumption that the evidence is legally sufficient under Jackson v. Virginia. ⁽²⁾ Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). Thereafter, the reviewing court asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)) (Court of Criminal Appeals adopts the complete civil factual sufficiency formulation.). In the instant case, we are presented with the type of evidentiary review characterized by the Court of Criminal Appeals as "balancing scale." See Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

In Goodman, the Court analogized the "balancing scale" review for factual sufficiency in the following manner:

Here, there is evidence on both sides of the question. Some evidence supports a positive inference, and some evidence supports a negative inference. For example, suppose a modern-day Cretan Liar ⁽³⁾ testifies: "I saw the defendant put the baggie of cocaine down on the sidewalk." Although the Cretan Liar has five prior perjury convictions, his testimony is nonetheless legally sufficient to prove that the defendant possessed the baggie. Direct evidence of "X" fact is always legally sufficient to support a finding of "X" fact. See Calvert ["No Evidence" and "Insufficient Evidence" points of Error, 38 TEXAS L. REV. 361 (1960)] at 363. The Cretan Liar's testimony, standing alone, is also factually sufficient to support the element of possession. If the jury believes him (and it is entitled to do so under either a legal or factual sufficiency review), then the Cretan Liar's testimony conclusively proves the point. (footnote omitted)

Now, suppose that the defendant calls a dozen boy scouts, who uniformly testify that they definitely saw the baggie lying on the sidewalk before the defendant came along and sat down. Now we have the Cretan Liar's testimony (which the jury was entitled to believe and actually did believe) set against the testimony of twelve boy scouts (whose testimony the jury was entitled to reject and whose testimony, for whatever reason, it did reject). Clearly, the jury's finding that the defendant possessed the baggie of cocaine is against the great weight and preponderance of the evidence. The Cretan Liar, with multiple perjury convictions, versus twelve boy scouts? (footnote omitted) Given this state of the evidence, the jury's verdict is "clearly wrong" and "manifestly unjust." A reviewing court can only attribute the verdict to bias, irrationality, or some other peculiarity.

Id. (emphasis in original).

From the whimsical example set out above, it would appear that a proper factual sufficiency review will encompass a quantitative analysis of the evidence (total amount of evidence presented by each party on a particular fact at issue), as well as a qualitative analysis of the evidence. Additionally, as part of the qualitative analysis, the reviewing court is to apparently make an independent assessment of any objective indicators of credibility for each fact-witness called to testify. As the Court noted in Goodman, "[T]he next practical issue is how many boy scouts does it take to make a verdict based on the testimony [of] a multiple perjurer 'clearly wrong' and 'manifestly unjust'? . . . At some point, the reviewing court necessarily exercises its subjective judgment." Id. at 286 n.5. In the instant case, the State called a total of six witnesses during the guilt/innocence phase. These included the victim [M.S.]; the records' custodian of the hospital where M.S. was medically examined; ⁽⁴⁾ a registered nurse who specialized in adult and pediatric sexual assault examinations; ⁽⁵⁾ the victim's cousin who also happened to live in an apartment directly across from appellant at the time the offense occurred; ⁽⁶⁾ the victim's mother; ⁽⁷⁾ and finally, as a rebuttal witness, Detective Carl Jones of the Willis Police Department. Furthermore, the State introduced three items of "physical" evidence: State's Exhibit 1-A, the medical records of the examination of the victim which took place approximately one month after the alleged date of the offense; State's Exhibit 4, a copy of the voluntary statement appellant provided to Detective Jones on June 21, 1995; and State's Exhibit 5, a certified copy of a judgment and sentence out of Harris County indicating appellant's conviction for misdemeanor theft in March of 1991.

The State's case essentially consisted of the victim, M.S., describing the events of the afternoon and evening of May 6, 1995, as she spent the night at the apartment of her class-mate, T.G., who happened to be appellant's step-daughter. At one point during the evening, M.S. recalled that she, T.G., appellant, and appellant's wife, Sheila, were all watching a movie in the living room. For some reason, T.G. left the room leaving M.S. lying on the floor watching the television with appellant sitting on a loveseat to her left, and Sheila lying on the couch behind M.S. and out of M.S.'s view. During this time, M.S. was apparently lying on her stomach. M.S. then described how appellant slid his foot between M.S.'s body and the floor "below [her] waist." When M.S. repositioned her body in an apparent attempt to escape this contact, appellant also moved. M.S. then stated that appellant got down on the floor, pulled down M.S.'s pajama shorts and her underwear, and inserted his penis inside her "vaginal area." M.S. further testified that appellant told her to "move with him." While M.S. could not remember if her "bottom" was tilted off of the ground or not during the sexual assault, she did remember that it hurt, that she felt some "slimy stuff" on her "back side," that she went to the bathroom to clean herself, and then went to T.G.'s room and cried. M.S. went home the next morning and did not report the sexual assault until approximately one month later.

In the case for the defense, appellant called nine witnesses including himself. Appellant's one exhibit consisted of a drawing made by the victim during her cross-examination depicting the locations of appellant, appellant's wife and the victim in appellant's living room at the time the sexual assault occurred. Of the eight witnesses called during the case-in-chief for the defense (we exclude appellant), six were related to appellant by either blood or marriage; ⁽⁸⁾ one was a former neighbor; ⁽⁹⁾ and the remaining witness was Dr. Gerald Bullock, appellant's medical expert. Appellant's defense consisted essentially of a two-pronged attack, viz: (1) an alibi for the May 5-7, 1995, weekend to the effect that appellant, his wife, and his daughter spent the entire weekend in Houston at his aunt's [Ruth Manning] apartment celebrating his aunt's 49th birthday; and (2) the only time the victim, M.S., ever spent the night at appellant's apartment took place in September of 1994 following a day spent in Montgomery, Texas, at a family reunion.   

Because the jury is the sole judge of the facts, we must give deference to jury findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to give contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Id. at 408-09. We are not free to re-weigh the evidence and set aside a jury verdict merely because we feel that a different result is more reasonable. Id. at 407. We cannot reverse the verdict if reasonable minds could differ about the conclusions to be drawn from the evidence. Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.--Dallas 1998, no pet.). We find the evidence factually insufficient only where necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407. A decision is not manifestly unjust merely because the jury resolved conflicting views in favor of the State. Id. at 410. Additionally, a decision is not manifestly unjust merely because the defense has presented a reasonable alternative hypothesis. See Ates v. State, 21 S.W.3d 384, 391 (Tex. App.--Tyler 2000, no pet.); Richardson, 973 S.W.2d at 387. In the instant case, we are presented with two diametrically opposed factual scenarios for what took place the weekend of May 5-7, 1995. Furthermore, all of the witnesses who are testifying to the events of that weekend are testifying from memory. We have no absolutely verifiable objective evidence proving the whereabouts of any of the parties or any of the witnesses on that weekend. ⁽¹⁰⁾ That being the case, our factual sufficiency analysis is strictly limited to that evidence which can be fully determined from the cold appellate record. Johnson, 23 S.W.3d at 8. If there is no or little such evidence, then we must defer to the jury's determination as to what weight to give the contradictory testimonial evidence because such a determination often turns on an evaluation of credibility and demeanor of the witnesses, and the jury was in attendance when the testimony was delivered. Id.

In the instant case, all of the witnesses were fully identified for the jury so that any potential biases and/or prejudices, either for or against appellant or the victim, provided a context for the jury to weigh said testimony. Appellant took the witness stand and was impeached by evidence of a prior theft conviction. Furthermore, an examination of appellant's testimony indicates that he may have been his own worst witness as he comes across as purposefully evasive, and quite argumentative.   

Applying the law to the facts in the instant case, we cannot say that the proof of guilt is greatly outweighed by contrary proof from appellant or his witnesses. The jury heard the case for the State as well as the case for the defense. Both sides had substantial fact witnesses who were also shown to the jury to be "interested" witnesses as well. The jury chose to believe the State's witnesses over appellant and his witnesses. The jury observed the demeanor of each witness and could hear the inflections in their verbal responses. From this, the jury was able to assess the credibility of the witnesses far better than a reviewing court relying solely on the "cold record." We find, therefore, that the record contains factually sufficient evidence to support the jury's verdict. Issue one is overruled.

Issues two through five contend trial counsel provided ineffective assistance to appellant. The State's brief correctly sets out the proper standard for reviewing claims of ineffective assistance as announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is appellant's burden to show by a preponderance of the evidence both that trial counsel performed deficiently at trial, and that the deficient performance prejudiced the defense. Id. at 687, 104 S. Ct. 2064, 80 L.Ed.2d at 693; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

In attempting to decipher appellant's brief on these issues, he appears to focus on two alleged deficiencies of trial counsel. First, appellant contends that his entire defense was prejudiced by his trial counsel's failure to "impeach" the victim, M.S., with testimony of the physician's assistant from the previous trial. However, the record before us does not include any transcribed testimony from the prior trial. At any rate, the record before us indicates that one of the defensive strategies of trial counsel was to show that if the victim was lying on the floor with her stomach down, as she testified, and her hips were not elevated, vaginal penetration by appellant's penis would have been very difficult or "extremely unlikely." This was one of the more salient points brought out by the testimony of Dr. Bullock, appellant's expert witness. Having failed to impress a prior jury with its ability to "impeach" M.S.'s testimony, trial counsel certainly could not be faulted in any way for choosing to forego that line of inquiry in favor of attempting to convince the present jury that penetration could not have been accomplished if M.S. was positioned on the floor as she testified. This was certainly very sound trial strategy.

The second "deficient" incident involved the so-called "instruction" by the trial court with regard to having Dr. Bullock explain the word "prone" to the jury. Appellant also throws in a complaint that this was an improper communication with the jury in violation of Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 1981). We reproduce the pertinent portion of the record so as to place the issue in its proper perspective:

Q.[Trial Counsel] You, of course, have never examined - - personally examined [M.S.], have you?

A.[Dr. Bullock] No, sir.

Q. And you're going only on the medical records that I have supplied to you, a copy of which you have in front of you now; is that right?

A. Yes.

[Trial Counsel]: May I have just a minute, Judge.

THE COURT: Yes, sir. Might I ask that counsel approach the bench here together.

(At the Bench, on the record)

THE COURT: Before we get this jury back there arguing over what the word "prone" means, it is very reasonable that this case got reversed the last time, would you clarify what you meant when you told the doctor "lying prone" to mean, flat on your stomach, or whatever you had in mind when you - -

[Trial Counsel]: Yes, sir.

THE COURT: - - asked that question?

[Trial Counsel]: Yes, sir.

THE COURT: I'd appreciate it very much.

[Trial Counsel]: Yes, sir.

THE COURT: Thank you.

(Open court, defendant and jury present)

[Trial Counsel]: May we have just another minute please, Judge.

THE COURT: Yes.

(Pause)

. . . .

Q.[Trial Counsel] Okay. When we talked before, you indicated - - let me strike that. With regards to the records that you were able to review, did those records indicate that the alleged victim was lying in a prone position?

A.[Dr. Bullock] The medical record - - let me refresh my memory just a minute. The medical record doesn't say that she was prone. Not the medical record.

Q. Okay. Does the medical record make any reference one way or the other whether or not she was prone?

A. No, it doesn't say she was and it doesn't mention it at all.

Q. When I use the word "prone," would you explain to the jury what you mean technically when we talk about or use the word "prone"? [sic]

A. Prone simply means lying flat on your stomach.

Q. And that would be without the buttocks being elevated?

A. Yes, sir, that would not be that.

Initially, we reject appellant's attempt to equate the events set out above with a violation of article 36.27. The trial court was clearly not attempting to communicate with the jury. The trial court simply requested trial counsel to have the witness clarify the word "prone" for the jury. The trial court did not define the word, nor try to impose its definition of the word upon either the parties or the jury. Additionally, trial counsel was not ineffective for failing to object to the trial court's request in that the explanation of the word "prone" provided to the jury by Dr. Bullock was consistent with trial counsel's apparent strategy to convince the jury that, because the victim was "lying flat on [her] stomach," her vagina could not have been penetrated by appellant attempting to enter her from behind. We find absolutely no deficient performance by trial counsel from appellant's issues two through five, and they are overruled.

Issues six through nine continue with the complaint that the trial court's "instruction" to trial counsel to have Dr. Bullock define "prone" was "an improper comment on the weight of the evidence;" was "an improper instruction on a factual matter" in violation of both the United States Constitution and the Texas Constitution; and was a violation of articles 36.14, 36.15, 36.16, and 36.27 of the Code of Criminal Procedure.

It appears from a careful reading of the "Argument and Authorities" portion of appellant's brief on these final issues that he is making a not-so-veiled attempt to secure a reversal by making the same "analysis" and by using the same authorities this Court used to find reversible error in his first trial. See Harrison, No. 09-97-143-CR, 1999 WL 233409, at *3-*4. However, as the record clearly indicates, the trial court did not provide the jury with a written definition of the word "prone," as was done in the first trial. There was no communication between the trial court and the jury at all with regard to the word "prone" or its meaning. Dr. Bullock's testimony of his understanding of the word's meaning was subject to cross-examination, and further subject to having the State's expert provide her own definition.

At any rate, there was absolutely no verbal or written communication from the trial court to the jury with regard to the word "prone." Because no communication took place, there could be no possible "comment on the weight of the evidence" by the trial court. Furthermore, the jury in the instant case did not send out any notes during its deliberations. Again, no communication took place between the trial court and the jury. Lastly, the witness whose testimony was in dispute in the prior trial, which prompted the trial court to provide the jury with the erroneous supplemental instruction, did not testify in the instant trial. In the instant case, the trial court wisely reminded the parties to clarify the word for the jury in hopes of avoiding any confusion during deliberations. As noted above, trial counsel's eliciting from Dr. Bullock his meaning of the word was consistent with counsel's strategy that, in the "prone" position as M.S. had previously testified, it would have been extremely difficult for appellant to place his penis into M.S.'s vagina. For all of these reasons, we overrule issues six through nine.

Having overruled all of appellant's issues, we affirm the judgment and the sentence of the trial court.

AFFIRMED.   

PER CURIAM

Submitted on May 31, 2002

Opinion Delivered June 19, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1. On July 27, 2001, appellant filed with us a petition to dismiss his court-appointed appellate counsel and a request to proceed

pro se. We subsequently abated the appeal and remanded the cause to the trial court to conduct a hearing pursuant to Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The trial court conducted a hearing and rendered a finding that appellant desired to proceed pro se, and permitted appellate counsel to withdraw. We concurred and issued an order to that effect, and reinstated the appeal.

2. 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

3. The Court provided the following footnote at this point:

History credits Epimenides, a 6th century B.C. philosopher, for introducing the semantical paradox known as the Cretan Liar. Epimenides, himself a Cretan, reputedly asserted, "All Cretans are liars." If all Cretans are indeed liars, as Epimenides says, then Epimenides himself must be lying when he states that all Cretans are liars.

4. This witness was Christine Johnson.

5. This witness, Alice Quartermous, did not physically examine M.S., but did the initial triage of M.S. and later reviewed the examination records generated by the emergency room physician and physician's assistant who conducted the physical examination of M.S. on June 19, 1995.

6. This witness was Tiffany Morris.

7. This witness was Chitquitta Renee Spears.

8. These included Ruth Manning, appellant's aunt; Curtis Gilford, appellant's brother-in-law; Craig Butler, appellant's first cousin; Billy Gene Harrison, appellant's brother; Amber Gilford, appellant's niece; and Sheila Harrison, appellant's wife.

9. This was the witness Markeesha Shepherd.

10. By "absolutely verifiable objective evidence" we mean some sort of unbiased, business-type records indicating a particular individual was located at a particular place on a certain date and time, such as records from a hospital or the book-in facility at a municipal or county jail.