Mark Green v. State

IN THE
TENTH COURT OF APPEALS
No. 10-13-00131-CR
MARK GREEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. C34826-CR
MEMORANDUM OPINION
In two issues, appellant, Mark Allen Green, challenges his conviction for
continuous sexual abuse of a child, a first-degree felony. See TEX. PENAL CODE ANN. §
21.02 (West Supp. 2013). We affirm.
I. BACKGROUND
On July 19, 2012, a Navarro County grand jury indicted appellant for one count
of aggravated sexual assault and one count of indecency with a child. However, this
indictment was dismissed, and on March 21, 2013, appellant was re-indicted by a
Navarro County grand jury in a new trial court cause number for a different offense—
continuous sexual abuse of a child. Appellant pleaded not guilty to the charged
offense, and a jury trial commenced. At the conclusion of the evidence, the jury found
appellant guilty of continuous sexual abuse of a child and sentenced him to fifty years’
confinement in the Institutional Division of the Texas Department of Criminal Justice
with a $10,000 fine. The trial court certified appellant’s right of appeal, and this appeal
followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, appellant complains that his trial counsel did not provide
effective assistance of counsel.
A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
First, appellant must show that counsel was so deficient as to deprive appellant of his
Sixth Amendment right to counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Second, appellant must show that the deficient representation was prejudicial and
resulted in an unfair trial. Id. To satisfy the first prong, appellant must show that his
counsel’s representation was objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, appellant must show that
there is “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable
Green v. State Page 2
probability exists if it is enough to undermine the adversarial process and thus the
outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett v. State, 65
S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks to the totality of the
representation and the particular circumstances of each case in evaluating the
effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly deferential
and presumes that counsel’s actions fell within a wide range of reasonable professional
assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813.
The right to “reasonably effective assistance of counsel” does not guarantee
errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v.
State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). “Isolated instances in the record
reflecting errors of commission or omission do not cause counsel to become ineffective,
nor can ineffective assistance of counsel be established by isolating or separating out
one portion of the trial counsel’s performance for examination.” Ex parte Welborn, 875
S.W.2d 391, 393 (Tex. Crim. App. 1990). Appellant bears the burden of proving by a
preponderance of the evidence that counsel was ineffective, and an allegation of
ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813.
Trial court counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111
(Tex. Crim. App. 2003). Specifically, when the record is silent regarding the reasons for
counsel’s conduct, a finding that counsel was ineffective would require impermissible
speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—
Houston [1st Dist.] 1996, no pet.). Therefore, absent specific explanations for counsel’s
Green v. State Page 3
decisions, a record on direct appeal will rarely contain sufficient information to evaluate
an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). To warrant reversal without affording counsel an opportunity to explain his
actions, “the challenged conduct must be ‘so outrageous that no competent attorney
would have engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007)
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Though the
record is silent as to the reasons for most of trial counsel’s conduct, we will examine the
record to determine if trial counsel’s conduct was “‘so outrageous that no competent
attorney would have engaged in it.’” Id. (quoting Goodspeed, 187 S.W.3d at 392).
B. Discussion
First, appellant contends that his trial counsel did not provide effective assistance
of counsel because trial counsel did not object to the indictment under article 28.10(c) of
the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 28.10(c)
(West 2006). Article 28.10 refers to the amendment of an indictment or information, and
subsection (c), in particular, provides that: “An indictment or information may not be
amended over the defendant’s objection as to form or substance if the amended
indictment or information charges the defendant with an additional or different offense
or if the substantial rights of the defendant are prejudiced.” Id. Appellant argues that
“[h]ad [t]rial [c]ounsel objected, he would not have had to try the case under the new
indictment.”
However, contrary to appellant’s assertions, the record reflects that the original
indictment was dismissed and that appellant was re-indicted in a different trial court
Green v. State Page 4
cause number for the offense of continuous sexual abuse of a child. Accordingly, article
27.11 of the Texas Code of Criminal Procedure, rather than article 28.10, applied. Id. art.
27.11 (West 2006). Specifically, article 27.11 states that: “In all cases[,] the defendant
shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and
during the term of the court, to file written pleadings.” Id.; see Trevino v. State, 900
S.W.2d 815, 817 (Tex. App.—Corpus Christi 1995, no pet.). Moreover, in Trevino, the
Corpus Christi Court of Appeals noted that:
While article 27.11 on its face dates the ten days preparation time from the
time of arrest, in non-arrest cases the date that the new charging
instrument is filed is used as the starting point. The filing of a new
indictment constitutes the institution of a new case against the defendant.
When a new indictment is filed, the new indictment is new in fact and not
an amendment of the first indictment, and therefore, the defendant is
entitled to ten entire days after the new indictment is filed to respond to
the new indictment with written pleadings.
900 S.W.2d at 817; see, e.g., Clair v. State, No. 2-03-507-CR, 2006 Tex. App. LEXIS 1661, at
**7-10 (Tex. App.—Fort Worth Mar. 2, 2006, no pet.) (mem. op., not designated for
publication) (rejecting appellant’s argument that the trial court erred by putting her on
trial on a new indictment “without time to prepare” because (1) article 28.10 did not
apply to the new indictment and (2) article 27.11’s requirements were met given that
appellant had eleven days from the date of the new indictment until the date of trial).
Because article 27.11, rather than article 28.10, applied to the indictments in this
case, an objection under article 28.10 would have been meritless. Furthermore,
appellant was re-indicted on March 21, 2013, and jury selection commenced on April 1,
2013. Given these dates, the State complied with the ten-day notice requirement
Green v. State Page 5
specified by article 27.11. See TEX. CODE CRIM. PROC. ANN. art. 27.11; see Trevino, 900
S.W.2d at 817. Accordingly, because the record is silent as to trial counsel’s strategy,
and because the complained-of objection is meritless, we cannot say that trial counsel
was ineffective for failing to object under article 28.10, in response to the new
indictment. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Lopez, 343 S.W.3d at
142.
Next, appellant contends that trial counsel’s statements in open court that he
could not render effective assistance of counsel under the new indictment were
sufficient to presume prejudice to the defense. We disagree. A review of the record
shows that trial counsel actively participated in trial. In particular, trial counsel
participated at length in the voir dire of the jury panel, cross-examined most of the
State’s witnesses, and presented a defense case that included numerous witnesses.
Thus, we cannot say that trial counsel’s representation of appellant fell below an
objective standard of reasonableness. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;
see also Roberts, 220 S.W.3d at 533; Thompson, 9 S.W.3d at 813; Ex parte Welborn, 875
S.W.2d at 393.
Appellant also argues that trial counsel was ineffective because he failed to
secure a necessary expert witness to testify about the veracity of the child victim’s
outcry of sexual abuse. The record does not support this claim. In fact, the record
reflects that appellant’s trial counsel offered Shara Lattimore, a forensic interviewer for
the Gingerbread House in Ellis County, Texas, as a defense expert regarding forensic
interviewing. The State challenged Lattimore’s testimony, and the trial court conducted
Green v. State Page 6
a hearing outside the presence of the jury. At the hearing, Lattimore explained her
qualifications and experience. The trial court deferred ruling on the State’s challenge.
However, for reasons not explained in the record, appellant’s trial counsel chose not to
call Lattimore as a witness. Nevertheless, the record reflects that trial counsel offered
multiple witnesses whose testimony conflicted with that of the child victim. Moreover,
appellant’s trial counsel cross-examined the State’s witnesses about the child victim’s
truthfulness regarding the outcry in this case. Additionally, appellant’s trial counsel
elicited testimony that the child victim made an initial claim of sexual abuse to her
friend but later denied the sexual abuse when confronted. Further, appellant’s trial
counsel attacked the child victim’s truthfulness in his closing argument. In any event,
without any explanation in the record regarding trial counsel’s decision to not call
Lattimore, we cannot say trial counsel was ineffective. See Strickland, 466 U.S. at 687,
104 S. Ct. at 2064; see also Roberts, 220 S.W.3d at 533; Thompson, 9 S.W.3d at 813; Ex parte
Welborn, 875 S.W.2d at 393.
And finally, appellant alleges that his trial counsel was ineffective because he
allegedly filed a frivolous motion for new trial. Appellant does not adequately explain
that but for the filing of an alleged frivolous motion for new trial, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
see also Mallett, 65 S.W.3d at 62-63; Thompson, 9 S.W.3d at 812. Thus, appellant did not
satisfy the second prong of Strickland. See 466 U.S. at 694, 104 S. Ct. at 2068; see also
Mallett, 65 S.W.3d at 62-63; Thompson, 9 S.W.3d at 812.
Green v. State Page 7
Because the record is silent as to trial counsel’s strategy, and because we look to
the totality of the representation, we cannot say that appellant has satisfied his burden
of proving by a preponderance of the evidence that his trial counsel was ineffective. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 813; see also Gamble,
916 S.W.2d at 92. We therefore overrule appellant’s first issue.
III. APPELLANT’S MOTION FOR CONTINUANCE
In his second issue, appellant asserts that the trial court abused its discretion by
denying his motion for continuance. In this issue, appellant relies heavily on trial
counsel’s statement that he could not effectively represent appellant without a
continuance.
A. Applicable Law
The denial of a motion for continuance is within the sound discretion of the trial
court, and we review a trial court’s denial of a motion for continuance for an abuse of
discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006); Janecka v. State,
937 S.W.2d 456, 468 (Tex. Crim. App. 1996). An appellant claiming erroneous denial of
a motion for continuance must show: (1) the trial court erred in denying the motion for
continuance; and (2) such denial harmed him in some tangible way. Gonzales v. State,
304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
B. Discussion
On appeal, appellant complains that his trial counsel was unprepared for trial
because he was unable to properly investigate the expanded time period and multiple
acts of sexual abuse encompassed under the continuous-sexual-abuse-of-a-child statute,
Green v. State Page 8
and because he could not investigate a purported second child’s allegation. At the
outset, we note that the record does not reflect that the State alleged a second victim in
the presentation of its case. Additionally, appellant does not assert that he was unfairly
surprised at trial or was unable to effectively cross-examine witnesses. Instead, he relies
on the bare assertion of his trial counsel that he was unprepared to try the re-indicted
offense. See Latimer v. State, 319 S.W.3d 128, 132 (Tex. App.—Waco 2010, no pet.) (“A
bare assertion that counsel did not have adequate time to prepare for trial is not
sufficient proof of prejudice.” (citing Renteria, 206 S.W.3d at 702; Heiselbetz v. State, 906
S.W.2d 500, 512 (Tex. Crim. App. 1995))).
And as mentioned above, the re-indictment complied with the ten-day notice
provision of article 27.11 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 27.11. Moreover, the record reflects that appellant’s trial counsel was
aware of multiple allegations of sexual abuse, as indicated by the initial indictment for
aggravated sexual assault and indecency with a child.1 Furthermore, appellant’s trial
counsel admitted viewing on two separate occasions a forensic interview conducted by
Lydia Bailey, wherein the child victim recounted multiple incidents of sexual abuse that
began in Navarro County and continued when appellant moved to Ellis County.2 And
finally, at the hearing on appellant’s motion for continuance, the trial court mentioned
1 Indeed, in his motion to quash the initial indictment, appellant’s trial counsel acknowledged
that the child victim had alleged “conduct giving rise to the Indictment [that] did not take place in
Navarro County.” This acknowledgement indicates trial counsel’s awareness of the numerous
allegations of sexual misconduct made by the child victim.
2 The child victim informed Bailey that appellant perpetrated numerous instances of sexual abuse
first in Navarro County and culminating with a rape in Palmer, Ellis County, Texas.
Green v. State Page 9
that this case had “been continued several times.” Based on the foregoing, we conclude
that appellant has not established any specific prejudice resulting from the trial court’s
denial of his motion for continuance. See Gonzales, 304 S.W.3d at 843. Accordingly, we
cannot conclude that the trial court abused its discretion in denying appellant’s motion
for continuance. See Renteria, 206 S.W.3d at 699; see also Janecka, 937 S.W.2d at 468. We
overrule appellant’s second issue.
IV. CONCLUSION
Having overruled both of appellant’s issues, we affirm the judgment of the trial
court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 26, 2014
Do not publish
[CRPM]
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