DocketNumber： 14-03-00499-CR
Filed Date： 3/11/2004
Status： Precedential
Modified Date： 9/15/2015
Affirmed and Memorandum Opinion filed March 11, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00499-CR
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PATRICK ALLEN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 29,583
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M E M O R A N D U M O P I N I O N
Appellant, Patrick Allen Jones was convicted by a jury of sexual assault. In seven issues, he contends (1) the evidence is legally and factually insufficient to support his conviction; (2) the jury charge contained law inapplicable to his case; (3) the statute under which he was prosecuted was applied ex post facto and is void for vagueness; and (4) he received ineffective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
Background
E.K. has a history of psychiatric illness and hospitalizations. On June 19, 1997, she admitted herself to a psychiatric hospital on the advice of her psychotherapist who thought she might kill or hurt herself. While at the hospital, she was diagnosed with severe, major depression.
At the time of E.K.’s admission, appellant was employed at the hospital as a licensed vocational nurse. His duties included passing out medications and documenting the status of the patients and whether they took their medication. Appellant administered E.K.’s medications twelve times. On at least three or four of these occasions, he and E.K. had “in depth” conversations about E.K.’s past, treatment, and medications in which she revealed intimate details about her life. Appellant also encouraged E.K. to take her medication and interact with her peers. E.K. testified that in the psychiatric hospital environment, patients are encouraged to quickly bond with staff members. She felt she bonded with appellant and developed an emotional dependency on him.
E.K. was discharged from the hospital on June 23, 1997. Four days later, appellant unexpectedly approached her outside of her work. E.K. invited appellant back to her home, and they went out to dinner and a movie that night. The next day, appellant took E.K. and her son to the beach. E.K. and appellant continued to have personal conversations similar to the ones they had at the hospital. They also began engaging in physical contact such as holding hands and kissing, mostly at appellant’s initiation. After returning to E.K.’s house from the beach, E.K. and appellant had sexual intercourse after E.K.’s son went to bed. According to appellant, the intercourse was consensual, and partially initiated by E.K. In contrast, according to E.K., she initially told appellant “no,” but she eventually submitted because she did not want her protests to wake her son and for him to see her engaging in such intimate acts outside the bond of marriage.
A jury found appellant guilty of sexual assault. His punishment was assessed at two years’ confinement probated for ten years. Appellant’s initial notice of appeal was filed late. He filed a post-conviction application for writ of habeas corpus claiming, among other matters, that he was entitled to file an out-of-time appeal. The trial court denied the requested relief, and this court affirmed that decision. See Jones v. State, 2000 WL 19149 (Tex. App.—Houston [14th Dist.] Jan. 13, 2000, pet. granted) (not designated for publication). The Court of Criminal Appeals reversed and remanded with instructions to grant an out-of-time appeal. Jones v. State, 98 S.W.3d 700 (Tex Crim. App. 2003). This appeal followed.
Jury Charge
In his fourth issue, appellant contends the abstract portion of the jury charge included an inapplicable instruction regarding a “health care services provider.” The State contends this issue is governed by the law-of-the-case-doctrine, which provides that when an appellate court resolves a question of law, this resolution will govern the disposition of the same issue when raised in a subsequent appeal. See Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999). Although appellant did raise issues concerning the jury charge in his previous appeal, we did not address whether this instruction was erroneous, or whether it caused appellant harm.
The statute under which appellant was charged stated that a sexual assault occurs when “the actor is a mental health services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor.” Tex. Pen. Code Ann. § 22.011(b)(9) (Vernon Supp. 1996). After the date of the offense, the statute was amended to include health care services providers in addition to mental health services providers. See Tex. Pen. Code Ann. § 22.011(b)(9) (Vernon 2003) (effective Sept. 1, 1997). Licensed vocational nurses are now included in the definition of health care service providers. Tex. Pen. Code Ann. § 22.011(c)(3)(C) (Vernon 2003) (effective Sept. 1, 1997).
Although appellant was charged in his capacity as a mental health services provider, the following statement was included in the abstract portion of the jury charge: “sexual assault is without the consent of the other person if the actor is a mental health services provider or a health care services provider . . . ‘Health care service provider’ means a licensed vocational nurse.” (Emphasis added). The application portion of the charge did not include a reference to “health care service provider,” but instructed the jury that if it believed appellant sexually assaulted E.K. and he “was then and there a mental health services provider, to wit a nurse at a Mental Hospital and the said E.K., was a former patient” the jury should find the defendant guilty of the offense of sexual assault. (Emphasis added). Because appellant did not raise any objection to the inclusion of “health care services provider” at trial, he will only be entitled to a reversal if the error caused egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
Because sexual assault by a health care provider was not the law applicable on the date of the alleged offense, references to “health care service provider” were erroneously included in the charge. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2004). Appellant contends this error caused egregious harm because it eliminated his ability to utilize the defense that he was not a mental health services provider. The application paragraph of a jury charge authorizes conviction, and an abstract charge that is not applied to the facts is insufficient to bring that theory before the jury. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996). Submitting an abstract instruction without applying it to the facts constitutes reversible error when the instruction is an incorrect or misleading statement of law that is necessary to implement the application paragraph. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). In this case, the application portion of the charge correctly instructed the jury to determine whether appellant was a mental health services provider. We find that any error in the abstract portion of the charge did not cause appellant egregious harm because the error did not impact the jury’s ability to implement the application paragraph. Appellant’s fourth issue is overruled.
Sufficiency of the Evidence
In his first, second, and third issues, appellant contends the evidence was legally and factually insufficient to support his conviction, and that his motion for an instructed verdict should have been granted. We treat a complaint about a trial court’s failure to grant a motion for directed verdict as a challenge to legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. Id. Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
In reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if “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.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Although we may disagree with the verdict, our factual sufficiency review must be appropriately deferential to avoid our substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
Appellant was charged with sexual assault in his capacity as a mental health services provider. See Tex. Pen. Code Ann. § 22.011(b)(9). Appellant claims there was no evidence that he was a mental health services provider. We note that at the time of the offense and appellant’s trial, mental health services provider was not defined in the penal code.[1]
In appellant’s previous appeal from the trial court’s habeas corpus judgment, he did not raise the issue of whether the evidence of this element was legally or factually sufficient. However, the law-of-the-case doctrine applies to implicit holdings as well as explicit ones. See Garrett v. State, 749 S.W.2d 784, 803 n.2 (Tex. Crim. App. 1986) (opinion on motion for rehearing), overruled on other grounds by Malik, 953 S.W.2d 284). In appellant’s previous appeal, we concluded that “the record contains clear and definite evidence relating to the nature of Appellant’s employment, showing that, as a licensed vocational nurse employed by a mental hospital, he was a ‘mental health services provider.’” Jones, 2000 WL 19149, at *3. Although we did not explicitly hold that the evidence was legally sufficient to support a finding of guilt, it was implicit in our determination that the evidence showed appellant was a mental health services provider. See Garrett, 749 S.W.2d at 803 n.2. Therefore, we conclude the evidence is legally sufficient.
In appellant’s factual sufficiency challenge, he claims that the jury’s verdict is so contrary to the overwhelming weight of the evidence to the extent that the verdict was based on the trial court’s definition of a health care services provider as a licensed vocational nurse in the jury charge. However, we measure the sufficiency of the evidence based on a hypothetically correct jury charge, which appellant concedes would not have included references to a health care services provider and licensed vocational nurse. See Malik, 953 S.W.2d at 240. Accordingly, we hold the evidence is factually sufficient to support the finding that appellant was a mental health services provider. Appellant’s issues one, two, and three are overruled.
Ex Post Facto and Void for Vagueness
In his fifth and sixth issues, appellant contends the statute under which he was convicted was applied ex post facto and is also void for vagueness. This court has already rejected these claims in appellant’s appeal from the trial court’s habeas corpus judgment. Jones, 2000 WL 19149, at *2– 3. Accordingly, we overrule these issues pursuant to the law of the case doctrine. See Howlett, 994 S.W.2d at 666.
Ineffective Assistance of Counsel
In his seventh issue, appellant claims his trial counsel was ineffective for failing to do the following: (1) move to quash the indictment; (2) object to the jury charge; (3) have command of the facts of the case; (4) interview and call prospective witnesses; (5) interview the State’s witnesses; (6) advise or prepare appellant in taking the witness stand; and (7) make proper objections.[2]
To demonstrate ineffective assistance of counsel, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). In considering the first prong, we indulge a strong presumption that counsel’s actions fell within the range of reasonable professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To overcome this presumption, an allegation of ineffectiveness must be firmly demonstrated in the record. Id. Appellant must prove ineffectiveness by a preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Appellant claims his trial counsel was ineffective for failing to object to the inclusion of “health care service provider” in the jury charge. In addressing appellant’s fourth issue, we concluded that appellant was not harmed by any error in the abstract portion of the charge because the law was correctly set forth in the application paragraph. Therefore, trial counsel was not ineffective for failing to make this objection. See Green v. State, 891 S.W.2d 289, 299 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).
Appellant contends his trial counsel: (1) did not advise or prepare him to testify, (2) failed to interview prospective defense and State’s witnesses, and (3) did not have a firm understanding of the legal issues because he did not obtain a copy of the indictment before the first day of trial. There is no support for these claims in the record. Therefore, these contentions cannot support a finding of ineffectiveness. See Thompson, 9 S.W.3d at 813–14.
Next, appellant contends his counsel did not sufficiently understand the facts of the case. In the application paragraph of the jury charge, mental health services provider was defined as a nurse in a mental hospital. Appellant’s counsel objected to this definition and requested “nurse” be replaced with “licensed vocational nurse.” The trial court overruled the objection. Appellant contends this demonstrates his counsel’s lack of a command of the facts of the case. However, appellant does not explain what facts his counsel lacked command of, nor does he explain how this objection demonstrates conduct below professional norms. Appellant has failed to meet his burden of proving deficient performance. See Bone, 77 S.W.3d at 833.
Last, appellant claims his counsel’s failure to object to the following amounts to ineffective assistance: (1) E.K.’s testimony that she trusted appellant because he was her nurse; (2) E.K.’s testimony that appellant “raped” her; and (3) the repeat of a question to appellant by the State regarding whether he was a mental health services provider. The record is silent regarding counsel’s reason for not objecting. When the record contains no explanation of trial counsel’s reasons for not objecting, an appellant fails to rebut the presumption that counsel’s actions were reasonable. Thompson, 9 S.W.3d at 814. We conclude appellant has failed to prove he received ineffective assistance of counsel and overrule appellant’s seventh issue.
Having overruled appellant’s issues, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed March 11, 2004.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Section 22.011 currently contains a definition of mental health services provider. Tex. Pen. Code Ann. § 22.011(c)(4) (Vernon Supp. 2004) (effective Sept. 1, 1999).
[2] This court previously concluded that appellant’s counsel was not ineffective for failing to move to quash the indictment. Jones, 2000 WL 19149, at *2. Therefore, under the law-of-the-case doctrine, we will not review this ground of appellant’s claim. See Howlett, 994 S.W.2d at 666; see also Ex Parte Nailor, 105 S.W.3d 272, 276 & n.3 (Tex. App.—Houston [14th Dist.] 2003, pet. granted).