Everett Charles Scott v. State

Everett Charles Scott v. State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-99-159-CR

     EVERETT CHARLES SCOTT,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 98-216-C

CONCURRING OPINION

      Although I agree to affirm the judgment, I cannot join the majority opinion.

NOTICE UNDER ARTICLE 37.07

      Limited to the facts of this case, I agree that the trial court did not abuse its discretion in finding the notice reasonable. As the majority states, Scott’s counsel did not object that the notice would be inadequate when he informed the court before trial that the State had agreed to provide notice “within four days.” Furthermore, because the ruling did not come until the beginning of the punishment phase, the court could have taken the time during guilt-innocence into account when it found the notice to be reasonable. I do not agree with the sections entitled “Evidence regarding the other sexual assault cases,” “Evidence regarding the victim,” or “Evidence regarding the four misdemeanor convictions and the drug indictment.” The trial court’s ruling should be made in light of circumstances that surround it at the time it is made. The majority uses the hindsight of what happened thereafter to justify the ruling. Because defense counsel in effect agreed to the rather late notice, how well he performed in handling the offenses is immaterial.

INEFFECTIVE ASSISTANCE OF COUNSEL

      Scott’s position on appeal is: 1) counsel should never have asked the grandson about Scott’s character; and 2) counsel never sought a ruling on the admissibility of the extraneous offenses and should not have stipulated to indictments alleging those offenses. He contends that, after opening the door to some form of impeachment, counsel’s stipulation allowed the State to exceed the scope of impeachment allowed under the rules of evidence. Specifically, he says that the State was not entitled to have the additional “victims” testify that they had been assaulted to impeach the grandson’s testimony, so there was no reason to stipulate.

      Following Strickland, the analysis must begin with the first prong of the two-pronged test: was trial counsel's performance so deficient, because he made errors of such a serious nature, that his assistance fell below an objective standard of reasonableness? Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984). Whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Counsel should not have asked the grandson about Scott’s character trait. Opening the door with that type of question cannot be considered sound trial strategy. Although the majority says Scott does not present a record of “counsel’s decision to call Scott’s grandson as a witness,” no record is needed to determine that he was called to testify that the complainant, Billy Cornett, had denied the offense prior to trial. So, the ineffectiveness alleged is not in calling the witness but in asking the wrong question.

      After he erroneously “opened the door,” counsel gave the State more than it was entitled to. Testimony of similar extraneous offenses was not admissible. Thus, counsel’s decision to, in effect, agree to assertions that the extraneous offenses had occurred also cannot be justified on the basis of “sound trial strategy.”

      The genesis of today’s interpretation of Rule 404(b) of the Rules of Evidence is found in Montgomery v. State, 810 S.W.2d 372, 386-95 (Tex. Crim. App. 1990) (on rehearing). Near the beginning of the discussion, the opinion says, “Evidence of ‘other crimes, wrongs, or acts’ ‘may, however, be admissible’ if it has relevance apart from its tendency ‘to prove the character of a person in order to show that he acted in conformity therewith.’” Id. at 387 (emphasis in original). Shortly thereafter, the opinion says, “On the other hand, if extraneous offense evidence is not ‘relevant’ apart from supporting an inference of ‘character conformity,’ it is absolutely inadmissible under Rule 404(b).” Id. (emphasis added); see also Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997). “For if evidence of ‘other crimes, wrongs, or acts’ has only character conformity value, the balancing otherwise required by Rule 403 is obviated, the rulemakers having deemed that the probativeness of such evidence is so slight as to be ‘substantially outweighed’ by the danger of unfair prejudice as a matter of law.” Montgomery, 810 S.W.2d at 387.

      This case is factually similar to Matthews v. State, 979 S.W.2d 720 (Tex. App.—Eastland 1998, no pet.). The Eastland court held it was error to allow evidence of an extraneous assault against the defendant’s fellow high school student, after the defendant had called character witnesses to testify that the he was a non-violent, peaceable, and truthful person. The state cross-examined the character witnesses to see if they knew about the extraneous assault; they did not. The state attempted to justify the admission of the extraneous-offense evidence “to rebut the impression” left by the defendant that he was a non-violent person who would not commit an assaultive act. In finding error the Court noted that the defendant’s character was not an essential element of the charge, claim, or defense under Rule 405. Id. at 722; Tex. R. Evid. 405. The complaint on appeal was finally overruled because the Court found that the error in admitting the evidence was harmless. Matthews, 979 S.W.2d at 723.

      The State was entitled to impeach the grandson with ”do you know” questions regarding the offenses against the other victims. Perhaps the majority has confused the rules differentiating between a witness or an accused who testifies and leaves a false impression about his own prior activities, who may be impeached with prior conduct, and a witness who testifies about a character trait of the accused. As our sister court in Houston has stated:

Under Rule 609, when a witness takes the stand and leaves the false impression of his "trouble" with the police, it is legitimate cross-examination to prove that the witness has been "in trouble" on other occasions. Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990) (quoting Nelson v. State, 503 S.W.2d 543, 545 (Tex. Crim. App. 1974)) (emphasis added). [footnote omitted]. See also Prescott v. State, 744 S.W.2d 128, 130-131 (Tex. Crim. App. 1988); Long v. State, 820 S.W.2d 888, 895 (Tex. App.—Houston [1st Dist.] 1991, pet. ref'd) (providing that if the accused is a witness, he may be impeached by prior offenses if he leaves a false impression as to the extent of his prior arrests, convictions, charges, or trouble with the police). It is when the witness makes a blanket statement concerning his conduct that he "opens the door" and his credibility may be impeached with "mere accusations, or specific acts of misconduct." Murphy v. State, 587 S.W.2d 718, 722 (Tex. Crim. App. [Panel Op.] 1979) (emphasis added).

On the other hand, when a witness testifies as to the character of the accused, Rule 405(a) allows "do you know" questions to be asked of the witness to test the basis for his personal opinion. Reynolds v. State, 848 S.W.2d 785, 788 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd); Thomas v. State, 759 S.W.2d 449, 452 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). [footnote omitted]. Here, by making the statement "My son wouldn't do that," R.P. became a character witness, espousing his opinion about appellant's propensity to commit the crime. See Hedicke v. State, 779 S.W.2d 837, 839 (Tex. Crim. App. 1989), cert. denied, 493 U.S. 1044, 110 S. Ct. 840, 107 L. Ed. 2d 836 (1990) (stating that personal opinion testimony of a witness who knows the person is one method of proving character).

Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no writ) (complaint that the trial court erred in allowing the State to cross-examine appellant's father about another accusation leveled against appellant in Arkansas).

      The State offered no justification for the admission of the extraneous offenses other than to rebut the grandson’s assertion of Scott’s character. See Pavlacka v. State, 892 S.W.2d 897, 902 (Tex. Crim. App. 1994) (State, as proponent of the evidence, suggested no theory of logical relevance other than character conformity by which rebuttal testimony can be said genuinely to rebut appellant's denials). The extraneous-offense indictments had no relevance apart from their tendency to show Scott’s character as one who habitually abuses under-age children. See Montgomery, 810 S.W.2d 387. “[T]his is precisely the inference that Rule 404(b) prohibits, because the probative value is deemed substantially outweighed by the danger of unfair prejudice as a matter of law.” Pavlacka, 892 S.W.2d at 902 (citing Montgomery, 810 S.W.2d at 387). Such evidence is “inherently prejudicial” and, in this instance, was not admissible. Montgomery, 810 S.W.2d at 388. To pass over the admission of prejudicial and arguably inadmissible evidence may be strategic; to pass over the admission of prejudicial and clearly inadmissible evidence, as here, has no strategic value. Ex parte Manchaca, 854 S.W.2d 128, 132 (Tex. Crim. App. 1993) (citing Lyons v. McCotter, 770 F.2d 529, 534 (5th Cir. 1985)).

      Counsel at first argued that he had not opened the door to testimony by the alleged victims. After the prosecutor suggested a hearing, the next event on the record is the discussion of the stipulation. Had counsel stood his ground, admission of the extraneous-offense evidence, had the court admitted it, would have been error. Instead, he agreed to stipulate to the most damaging form of extraneous-offense evidence—that of similar misconduct of a sexual nature.

      Because I believe that trial counsel’s performance was seriously deficient, I turn to the second prong of the Strickland test: can Scott affirmatively prove prejudice, i.e., can he show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different? Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

      It is possible for a single egregious error of omission or commission to constitute ineffective assistance. Thompson, 9 S.W.3d at 813; see, e.g., Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991) (failure to challenge a void prior conviction used to enhance punishment rendered counsel ineffective); Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.—El Paso 1999, pet. ref’d) (counsel's failure to properly prepare defendant for his testimony was both ineffective and extremely prejudicial); Brown v. State, 974 S.W.2d 289, 293 (Tex. App.—San Antonio 1998, pet. ref’d) (“We find no reasonable explanation for why defense counsel would open the door to this damaging extraneous evidence and aid in linking the evidence to the defendant.”).

      I cannot say that counsel’s asking the question of Scott’s grandson and agreeing to the stipulation seriously undermines confidence in the outcome of the case. Although the question led to the State’s offer of extraneous-offense evidence, the stipulation was not more damaging than live testimony would have been. Even though (1) most of the State’s numerous witnesses were impeached to some extent, (2) the State relied heavily on the testimony of the complainant whose credibility had been attacked by a showing that he had initially denied the events and had told Scott’s grandson that the events had not occurred, and (3) the evidence was used forcefully in the State’s final argument when the prosecutor told the jury that they heard about the two other offenses only because counsel “open[ed] the door for you to find out that there are other people who believe he does have the kind of character that would do that . . . to young boys,” I cannot say that exclusion of the extraneous-offense evidence would have yielded a different result in the proceeding. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      Because I disagree with the way the majority has analyzed Scott’s issues, I do not join the opinion, but concur in affirming the judgment.

                                                                       BILL VANCE

                                                                       Justice

Concurring opinion delivered and filed August 15, 2001

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