Ernest Lewis Hall v. the State of Texas

Opinion issued March 8, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00240-CR
———————————
ERNEST LEWIS HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1524469
MEMORANDUM OPINION
A jury convicted appellant Ernest Lewis Hall of the second-degree felony
offense of sexual assault of a child between fourteen and seventeen years of age, and
it assessed his sentence at three years’ imprisonment. See TEX. PENAL CODE §§
22.011(a)(2)(A), (f), 12.33(a). In a single issue on appeal, Hall contends that his trial
counsel provided ineffective assistance by failing to object to the admission of
written statements that violated his constitutional right to confront witnesses against
him. We affirm.
Background
In 2015, fourteen-year-old K.G. (“Kim”) lived with her family across the
street from Hall, his wife, and their children.1 Hall was forty-seven years old at the
time. Kim’s sister, J.M. (“Jane”), moved out of Kim’s home and into Hall’s home
from January to October 2015 due to an “altercation” she had with her mother.
Although Jane lived with Hall during this time, Kim initially did not know Hall very
well. She met him sometime around July 2015 while walking her younger brother to
the bus stop to go to school. Hall was outside of his house, and he called Kim over
and told her that he “recognized” her and could see that she “liked him.”
After that day, Kim noticed that Hall would watch her when she walked to the
bus stop. She began seeing him more often in personal settings, such as while visiting
Jane at his house. Away from others, Hall would comment on Kim’s appearance and
try to kiss her. He also paid for her younger brother to play football and offered to
1
In this opinion, we refer to the child complainant and her family members by
pseudonyms to protect their privacy. See TEX. CONST. art. I, § 30(a)(1) (granting
crime victims “the right to be treated with fairness and with respect for the victim’s
dignity and privacy throughout the criminal justice process”).
2
take him to football practice. Kim’s parents agreed, but they asked Kim to go along.
Hall made her sit in the front seat of his car and, when they were alone during the
practice, began making increasingly sexual advances towards her. He showed her
pornography on his cell phone and eventually progressed to having sexual
intercourse with her. Kim testified that she and Hall had sexual intercourse numerous
times between July and October 2015, including in her backyard at night. She also
testified that Hall bought her things, like snacks and pet medicine. Hall also gave
Kim his old cell phone, and he talked to her every day and sent her sexually
suggestive text messages.
In October, while still living with Hall, Jane returned to her family’s home
one morning because her mother had agreed to drive her to school. While passing
by Kim’s bedroom, Jane saw the cell phone on the bed. Jane knew that Kim was not
allowed to have a cell phone, so she took it with her to school. Jane went through
the phone and found photographs and text messages between Hall and Kim that were
“very sexual” in nature.
When Jane returned to her family’s home after school, Kim was there but their
parents were not. Jane confronted Kim about what she had found on the cell phone.
Kim became scared and begged Jane not to tell anyone. Kim grabbed a knife, later
saying that she intended to use it to commit suicide, but Jane talked her into
relinquishing the knife. Not giving up, Kim ran upstairs to her second-story bedroom
3
and jumped out of the window, later saying that she had intended to commit suicide
again. Hearing Kim’s cries, Jane ran upstairs to Kim’s bedroom and then back
downstairs, where she found Kim lying face down on the ground badly injured. Her
stepfather returned home about that time, and Jane told him to call 911.
While waiting for the police to arrive, Jane went to Hall’s house and showed
his wife what she had found on the cell phone. After the police arrived, Jane returned
home and reported the contents of the phone to the police. Jane did not return to live
with Hall after that day.
An ambulance took Kim to the hospital, where she was treated for a broken
heel bone. She gave a statement to the police about Hall’s conduct. She later met
Houston Police Department (“HPD”) Officer Calandra Broussard, who was assigned
to investigate Kim’s sexual abuse allegations.
Broussard scheduled a forensic interview and examination of Kim at the
Children’s Assessment Center (“CAC”) and accompanied her there.2 Broussard
submitted questions to the CAC to ask Kim during the interview. Broussard also
observed the interview from a monitor in a separate room, and she had an
opportunity to question Kim herself. Marcella Donaruma, M.D., examined Kim and
issued a report (the “CAC report”), which included a narrative of Kim’s sexual
2
Broussard testified that a “forensic interview is an interview done by an interviewer
that’s specializing [in] questioning children that experience trauma.”
4
assault allegations and Dr. Donaruma’s examination findings. In a section entitled
“Impressions and Plans,” Dr. Donaruma commented that her examination of Kim
was “consistent with [Kim’s] history of penile-vaginal contact.”
Kim testified at trial, and Hall cross-examined her. The CAC report was
admitted into evidence. A State’s witness, HPD Officer Susan McAllister, read
Kim’s narrative statement in the CAC report to the jury.3 Defense counsel did not
object. Dr. Donaruma did not testify. Her findings in the admitted CAC report were
not read to the jury.
The jury found Hall guilty of the offense of sexual assault of a child and
sentenced him to three years’ confinement. See id. § 12.33(a). The trial court entered
a judgment of conviction and certified Hall’s right of appeal. See TEX. R. APP. P.
25.2(a)(2). This appeal followed.
Ineffective Assistance of Counsel
In his sole issue on appeal, Hall contends that his trial counsel provided
ineffective assistance by not objecting to the admission of Kim’s and Dr.
Donaruma’s statements contained in the CAC report. He argues that admission of
these statements violated his right under the Confrontation Clause to confront
witnesses against him.
3
During the investigation, Broussard transferred departments and McAllister
assumed the investigation into Hall’s conduct from Broussard.
5
A. Right to Effective Assistance of Counsel
The Sixth Amendment of the United States Constitution and Article I, section
10, of the Texas Constitution guarantee criminal defendants the right to reasonably
effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective
assistance of counsel requires “objectively reasonable representation,” not “errorless
counsel.” Lopez, 343 S.W.3d at 142.
To establish that trial counsel provided ineffective assistance, a criminal
defendant bears the burden to demonstrate by a preponderance of the evidence that:
(1) his counsel’s performance was deficient; and (2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez,
343 S.W.3d at 142. The defendant must prove both prongs on appeal before an
appellate court will find that trial counsel’s representation was ineffective.
Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142.
To satisfy the first prong, the appellant must show that his trial counsel’s
performance fell below an objective standard of reasonableness under the prevailing
professional norms. Strickland, 466 U.S. at 687–88; Lopez, 343 S.W.3d at 142. To
demonstrate prejudice under the second prong, the appellant must show a reasonable
probability exists that the result of the proceeding would have been different without
counsel’s unprofessional errors. Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at
6
142. A reasonable probability is one sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at 142.
Our review of trial counsel’s performance is “highly deferential.” Strickland,
466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Courts
“indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance[,]” and an appellant must overcome the
presumption that the challenged action might be considered sound trial strategy.
Strickland, 466 U.S. at 689; see Lopez, 343 S.W.3d at 142–43.
For an appellate court to find that trial counsel was ineffective, “counsel’s
deficiency must be affirmatively demonstrated in the trial record; the court must not
engage in retrospective speculation.” Lopez, 343 S.W.3d at 142. “It is not sufficient
that [an] appellant show, with the benefit of hindsight, that his counsel’s actions or
omissions during trial were merely of questionable competence.” Id. at 142–43
(quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)).
In most cases, the record on direct appeal is undeveloped and thus inadequate
to show that trial counsel was not effective.4 Menefield v. State, 363 S.W.3d 591,
592–93 (Tex. Crim. App. 2012); see Thompson v. State, 9 S.W.3d 808, 813 (Tex.
4
Claims of ineffective assistance of counsel rejected on direct appeal for “lack of
adequate information may be reconsidered on an application for a writ of habeas
corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
7
Crim. App. 1999) (“A substantial risk of failure accompanies an appellant’s claim
of ineffective assistance of counsel on direct appeal.”). Trial counsel “should
ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective.” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005)). When trial counsel is not provided an
opportunity to explain his actions, we will not find that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Id. (quoting Goodspeed, 187 S.W.3d at 392).
B. Right to Confront Witnesses
The Sixth Amendment also guarantees a criminal defendant the right “to be
confronted with the witnesses against him[.]” U.S. CONST. amend. VI; see Crawford
v. Washington, 541 U.S. 36, 42 (2004) (stating that Confrontation Clause applies to
both federal and state prosecutions); see also TEX. CONST. art. I, § 10 (providing that
criminal defendant “shall be confronted by the witnesses against him”). “In
accordance with this constitutional right, out-of-court statements offered against the
accused that are ‘testimonial’ in nature are objectionable unless the prosecution can
show that the out-of-court declarant is presently unavailable to testify in court and
the accused had a prior opportunity to cross-examine him.” Langham v. State, 305
S.W.3d 568, 575–76 (Tex. Crim. App. 2010); see TEX. R. EVID. 804(b)(1)(B)
(providing that former trial or hearing testimony, when offered in criminal case, is
8
not excluded by hearsay rule if declarant is unavailable as witness and opposing
party had opportunity to develop testimony by examination).
The threshold issue in a Confrontation Clause inquiry is whether the
challenged out-of-court statement is testimonial. Langham, 305 S.W.3d at 576;
Trigo v. State, 485 S.W.3d 603, 610 (Tex. App.—Houston [1st Dist.] 2016, pet.
ref’d). In determining this threshold issue, reviewing courts consider whether “the
surrounding circumstances objectively indicate that the primary purpose of the
interview or interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.” Langham, 305 S.W.3d at 576 (quoting De La Paz v.
State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)). The “primary purpose” is “the
‘first in importance’ among multiple, potentially competing purposes” for creating
the records. Id. at 579. The United States Supreme Court has identified three types
of out-of-court statements that comprise a “core class of ‘testimonial’ statements”:
(1) “ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially”;
(2) “extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions”; and
(3) “statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement
would be available for use at a later trial[.]”
Crawford, 541 U.S. at 51–52 (citations omitted).
9
Medical reports created for treatment purposes generally are non-testimonial
in nature and, therefore, are not subject to Confrontation Clause constraints. See
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009) (distinguishing cases
involving “medical reports created for treatment purposes, which would not be
testimonial”); Murray v. State, 597 S.W.3d 964, 974 (Tex. App.—Austin 2020, pet.
ref’d) (concluding that statements in SANE exam report are non-testimonial when
primary purpose of making statement was for medical treatment). In contrast,
forensic laboratory reports prepared in connection with criminal investigations or
prosecutions generally are considered testimonial. See Bullcoming v. New Mexico,
564 U.S. 647, 657–59 (2011) (recognizing that forensic laboratory report certifying
blood-alcohol content of defendant’s blood sample in DWI case was testimonial);
Melendez-Diaz, 557 U.S. at 310–11 (holding that forensic analysis reports certifying
that cocaine was seized from defendant were testimonial).
C. Analysis
Hall argues that his rights under the Confrontation Clause were violated by
the admission of Kim’s and Dr. Donaruma’s statements in the CAC report, and he
further argues that his right to effective assistance of counsel was violated by defense
counsel’s failure to object to the admission of this evidence. Hall concedes that notes
from sexual assault examinations taken for the purpose of providing medical
treatment are generally considered non-testimonial and not subject to the
10
Confrontation Clause. See Murray, 597 S.W.3d at 974. But he argues that the State
did not meet its burden to establish that the CAC report was created for the purpose
of providing medical treatment to Kim. Hall argues that Dr. Donaruma, the report’s
author, did not testify at trial and no evidence showed the purpose of the report. Hall
argues that the admission of these statements violated his right to confront witnesses
against him, and his counsel’s failure to object to their admission constituted
ineffective assistance of counsel.
The State responds that the CAC report was created for the purpose of
providing medical treatment and was therefore non-testimonial and admissible under
the Confrontation Clause. The State argues that Hall only identifies Dr. Donaruma’s
statement as prejudicial, but he does not identify Kim’s narrative statements as
prejudicial. It argues that a reasonable defense attorney would not have objected to
the admission of Dr. Donaruma’s statement because it was not read to the jury and
an objection by defense counsel would have resulted in the State calling her to
provide live testimony. The State therefore contends that it was sound trial strategy
to not object.
At trial, Dr. Donaruma, who created the CAC report, did not testify. The State
introduced the report through Officer Broussard, the initial criminal investigator of
Kim’s sexual assault allegations. Broussard testified that she scheduled Kim’s
examination, accompanied her to the CAC, submitted questions to Dr. Donaruma to
11
ask her during the interview, and observed the forensic interview. Broussard did not,
however, testify about the contents of the report.
Dr. Donaruma’s statements in the report were never referenced during trial.
But Kim’s statements in the report were read to the jury by one of the State’s
witnesses, Officer McAllister. Defense counsel did not object either to the admission
of the report or to McAllister’s reading of Kim’s statements to the jury. See
Melendez-Diaz, 557 U.S. at 313 n.3 (stating that defendant can waive right to
confrontation by not objecting on this ground); Scott v. State, 555 S.W.3d 116, 126
(Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (same).
1. Kim’s Statements
On appeal, Hall challenges both Kim’s statements and Dr. Donaruma’s
statements in the CAC report. Kim testified at trial and was cross-examined by Hall.
“[W]hen the declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of his prior testimonial statements.”
Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (quoting Crawford,
541 U.S. at 59 n.9). Because Kim appeared for cross-examination at trial, the
Confrontation Clause does not bar admission of her statements in the CAC report.
See id. Therefore, Hall cannot establish that the trial court would have erred in
overruling any objection to Kim’s statements on this ground. See Prine v. State, 537
S.W.3d 113, 117–18 (Tex. Crim. App. 2017) (stating that failure to object will not
12
support ineffective assistance claim unless trial court would have erred in overruling
objection).
2. Dr. Donaruma’s Statements
Dr. Donaruma, however, did not testify at trial. We therefore turn to whether
her statements in the CAC report were testimonial in nature such that the
Confrontation Clause applied to bar admission of her prior statements. See Woodall,
336 S.W.3d at 642; Trigo, 485 S.W.3d at 610 (stating threshold issue in
Confrontation Clause inquiry is whether challenged out-of-court statement is
testimonial).
As the parties agree, medical reports created for treatment purposes are
generally non-testimonial and not subject to the Confrontation Clause. See Murray,
597 S.W.3d at 974. However, the record on appeal is unclear whether the CAC report
was created for the purpose of providing medical treatment, and therefore whether
the statements in it are testimonial in nature.5 See Prine, 537 S.W.3d at 117–18
(stating that failure to object will not support ineffective assistance claim unless trial
5
Hall argues that the State did not meet its burden to prove that the statements were
non-testimonial and thus admissible under the Confrontation Clause. However, the
State does not bear any such burden until a defendant objects to evidence on
Confrontation Clause grounds. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim.
App. 2008) (“Once appellant objected to the admission of the notes under Crawford,
the burden shifted to the State, as the proponent of that evidence, to establish that it
was admissible under Crawford.”). Because defense counsel did not object, the
State was not required to establish the admissibility of the statements prior to
introducing them into evidence.
13
court would have erred in overruling objection); see also Lopez, 343 S.W.3d at 142(stating that “counsel’s deficiency must be affirmatively demonstrated in the trial
record”).
On one hand, the report was created by a medical doctor, Dr. Donaruma, and
it states that the “Reason For Visit” is a “Sexual Abuse Exam.” The report includes
Kim’s statement about the sexual abuse, Dr. Donaruma’s examination of Kim, and
laboratory and diagnostic reports showing that Kim tested negative for sexually
transmitted diseases. The report also includes a section entitled “Impressions and
Plans” in which Dr. Donaruma commented: “A transection of the hymen is
indicative of blunt force penetrating trauma to the vagina. This is consistent with
[Kim’s] history of penile-vaginal contact.” These parts of the report suggest that the
report was created for treatment purposes. See Melendez-Diaz, 557 U.S. at 312 n.2;
Murray, 597 S.W.3d at 974.
But neither the report itself nor any other record evidence states the purpose
for creating the report or even the purpose of the CAC. Broussard testified that a
“forensic interview is an interview done by an interviewer that’s specializing [in]
questioning children that experience trauma,” and McAllister referred to the CAC
as “our Children’s Assessment Center medical clinic.” But this does not show that
the primary purpose of the CAC report was to provide medical treatment rather than
to document the physical effects of Hall’s conduct to aid in his criminal investigation
14
and eventual prosecution. See Langham, 305 S.W.3d at 576 (stating that reviewing
courts consider whether surrounding circumstances objectively indicate that primary
purpose of interview or interrogation is to establish or prove past events potentially
relevant to later criminal prosecution); Melendez-Diaz, 557 U.S. at 312 n.2
(distinguishing medical reports created for treatment purposes, which are not
generally considered testimonial).
Furthermore, the report itself indicates that it may have been prepared in
connection with Hall’s investigation and prosecution. For example, it references
Officer Broussard and HPD as the agency with law enforcement jurisdiction. It states
that the interview and examination occurred at the end of October 2015, one month
after Hall’s sexual assault of Kim ended. Although a medical doctor conducted the
interview and examination and created the CAC report, Officer Broussard scheduled
the interview and examination, accompanied Kim to the CAC, submitted questions
to Dr. Donaruma to ask during the interview, observed the interview, and had an
opportunity to ask questions herself. See Ohio v. Clark, 576 U.S. 237, 249 (2015)
(“Statements made to someone who is not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be testimonial than
statements given to law enforcement officers.”). This evidence suggests that Dr.
Donaruma’s statements in the report “were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be available
15
for use at a later trial.” See Crawford, 541 U.S. at 51–52 (describing “core class of
‘testimonial’ statements”). Because the record on appeal does not clarify the primary
purpose of the CAC report, we are unable to conclude that the statements in the
report were testimonial and therefore objectionable under the Confrontation Clause.
See Langham, 305 S.W.3d at 576.
But assuming without deciding that Dr. Donaruma’s statements were
testimonial and the trial court would have erred in overruling an objection to them,
Hall has not established that defense counsel provided ineffective assistance. See
Prine, 537 S.W.3d at 117–18. This is because the record on appeal is silent regarding
defense counsel’s strategy for not objecting to admission of Dr. Donaruma’s
statements. See Lopez, 343 S.W.3d at 142–43. Trial counsel “should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.” Menefield, 363 S.W.3d at 593 (quoting Goodspeed, 187 S.W.3d at
392). Absent counsel’s opportunity to explain the challenged conduct, we will not
find that counsel’s performance was deficient unless the conduct was “so outrageous
that no competent attorney would have engaged in it.” Id. (quoting Goodspeed, 187
S.W.3d at 392). Hall did not file a motion for new trial to afford his counsel an
opportunity to defend his trial strategy, and Hall does not cite to any part of the
record showing an explanation by counsel.
16
As the State correctly points out, defense counsel may have determined that
the best strategy was not to object to Dr. Donaruma’s statements in the CAC report.
See Strickland, 466 U.S. at 689 (stating that courts “indulge a strong presumption”
that counsel’s conduct was reasonable, and “scrutiny of counsel’s performance must
be highly deferential”); Lopez, 343 S.W.3d at 143 (stating that when direct evidence
of counsel’s deficient performance is not available, courts will “assume that counsel
had a strategy if any reasonably sound strategic motivation can be imagined”).
Although the State had subpoenaed Dr. Donaruma to testify at trial, it ultimately did
not call her as a witness or reference her statements during trial. Although the jury
could have read these statements, there was no live testimony about them.
Had defense counsel objected to the statements, the State could have simply
called Dr. Donaruma as a witness to provide live testimony and emphasize her
statements contained in the report. See Menefield, 363 S.W.3d at 593 (stating that
record was silent on defense counsel’s strategy in not objecting to laboratory
analyst’s report that was inadmissible under Confrontation Clause, but concluding
that “perhaps the State could (and with an objection would) have brought [the
analyst] to the courtroom to testify, and counsel realized that cross-examining [the
analyst] would not benefit his client”). Dr. Donaruma’s live testimony highlighting
her statements in the CAC report likely would not have benefitted Hall’s defense.
See id. Thus, defense counsel could have reasonably concluded that the best trial
17
strategy was not to object to the arguably inadmissible statements and minimize any
impact the statements had on the jury. See Lopez, 343 S.W.3d at 143 (“[W]e will
assume that counsel had a strategy if any reasonably sound strategic motivation can
be imagined.”).
For these same reasons, the record on appeal does not demonstrate a
reasonable probability that, but for defense counsel’s failure to object to the
statements in the CAC report, the jury would have acquitted Hall of sexual assault
of a child. See Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at 142. Our confidence
in the outcome is not undermined by counsel’s failure to object to admission of the
statements. See Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at 142.
Hall did not meet his burden on the record before us to overcome the
presumption that his counsel’s performance fell within the wide range of reasonable
professional assistance that might be considered sound trial strategy. See Strickland,
466 U.S. at 689; Lopez, 343 S.W.3d at 142–43. The record on appeal does not
affirmatively demonstrate counsel’s deficiency, and the challenged conduct was not
so outrageous that no competent attorney would have engaged in it. See Menefield,
363 S.W.3d at 593; Lopez, 343 S.W.3d at 142–43. Nor did Hall meet his burden on
the record evidence to establish that his counsel’s performance prejudiced his
defense. See Strickland, 466 U.S. at 687. We therefore conclude that Hall has not
18
met his burden to establish that his trial counsel provided ineffective assistance. See
id.; Lopez, 343 S.W.3d at 142.
We overrule Hall’s sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice
Panel consists of Justices Kelly, Hightower, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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