Richard Blake Bradley v. State ( 2004 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICHARD BLAKE BRADLEY,                           )

                                                                              )     No.  08-03-00112-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     394th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Presidio County, Texas

Appellee.                           )

                                                                              )                      (TC# 2672)

                                                                              )

MEMORANDUM  OPINION

Appellant Richard Blake Bradley was charged by indictment with the offense of indecency with a child.  Appellant pled not guilty.  After a bench trial, Appellant was found guilty, and after a pre-sentencing investigation, the trial court sentenced him to 5 years imprisonment in the Institutional Division, Texas Department of Criminal Justice.  The Court of Criminal Appeals granted Appellant=s application for writ of habeas corpus, permitting Appellant to pursue this appeal out of time.

Appellant=s court-appointed counsel has filed a brief in which she has concluded that the appeal is frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).  Appellant=s counsel, however, proposes one arguable issue in the brief.

Appellant=s counsel has attempted to deliver a copy of counsel=s brief to Appellant, and by electronic mail and regular mail has informed Appellant of his right to examine the appellate record and file a pro se brief.  No pro se brief has been filed.

INEFFECTIVE ASSISTANCE OF COUNSEL

The arguable issue presented in counsel=s brief  is whether Appellant was denied effective assistance of counsel because his trial counsel failed to investigate the case and failed to call critical witnesses, Appellant=s parents.

Standard of Review

We review claims of ineffective assistance of counsel under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986).  To prevail, the appellant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064.  The appellant must also show that counsel=s deficient performance prejudiced his defense.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).  This requires the appellant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.

In reviewing an ineffective assistance of counsel claim, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy.  Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption.  Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. It is the defendant=s burden to prove ineffective assistance of counsel by a preponderance of the evidence.  Thompson, 9 S.W.3d at 813.

Factual Background

The complainant, thirteen-year-old C.N., testified that on December 12, 1997, she and her girlfriends attended a sleep-over held by Appellant=s younger sister, L.B.  The girls settled down for the night in the fold-out bed in the couch in the living room, watching television and talking to each other. Appellant was sitting in the recliner chair in the room.  Appellant moved out of the chair and sat by the bed.  C.N. testified that during the sleep-over, Appellant put his hands under the covers and touched her breasts and vagina under her clothes.  C.N. got out of bed and took her friend M.Q. with her to the bathroom.  Appellant left and slept in another room of the house.  C.N. woke up L.B. and her friends and told L.B. what had happened. C.N. was crying and told L.B. she wanted to wake up her parents, but L.B. said no.  On the following day, a Saturday, C.N. did not tell L.B.=s parents about what happened the night before. She did not tell her mother either because she was scared and did not know how her mother would react.

M.Q. testified that Appellant touched her under her legs, but she grabbed his hand and scratched it.  A few minutes later, she switched places with C.N. in the bed. She saw Appellant put his hands under the covers and she remembered that C.N. started to nudge her and look at her like she needed help.  M.Q. offered similar testimony to C.N.=s about what happened next.  The following day, M.Q. did not tell L.B.=s parents or her mother about what had happened.

The following Monday, the girls went to see Holly Tuck, their junior high school counselor.  Ms. Tuck testified that six or seven girls were in her office after lunch. C.N. was extremely upset.  Ms. Tuck sat her in her office with the door closed and asked her what was going on.  C.N. told her that over the weekend, she had been touched inappropriately in a private place.  C.N. told her that she had gone to a sleep-over after the school dance on December 12 and that during the evening, Appellant touched her under her shorts. Ms. Tuck notified the school principal, interviewed the other girls individually, interviewed C.N. again, and informed C.N.=s mother about what she had been told.

C.N.=s mother testified that she went down to the police station after her meeting with Ms. Tuck.  She met with the chief of police.  The police took her statement and said they would get back to her.  A few months passed and from a contact, C.N.=s mother learned that they had forgotten about her case and she later received an apology.  However, again they did not call her back.  On January 22, 1998, C.N.=s mother filed a complaint with the Presidio County Sheriff=s Office and C.N. gave a videotaped statement.

Chief Deputy Alton R. Taylor of the Presidio County Sheriff=s Office went to Appellant=s home, advised him of his rights, informed Appellant about the allegations made against him, and asked him if he wanted to give a statement.  Appellant said he did not want to talk to him about it, so Deputy Taylor left.  Later that same evening, Deputy Taylor received a call from Appellant, who said he had changed his mind and wanted to make a statement concerning the allegations.  Deputy Taylor picked up Appellant and drove him to the sheriff=s office.  Before taking his statement, Deputy Taylor advised Appellant of his rights and gave the Miranda warnings.  Appellant told him that he understood those rights.  During cross-examination, Deputy Taylor conceded that he did not talk to the police department about the case.

Appellant=s voluntary statement was admitted into evidence.  In his statement, Appellant described a consensual sexual encounter with C.N.  At trial, Appellant testified in his defense.  He recanted the statement he gave to the police.  He stated that he gave the statement to please Deputy Taylor and because Deputy Taylor had scared him by saying he would return with an arrest warrant and that he could get twenty years to life for the offense. The State recalled Deputy Taylor, who testified that he did not fabricate the statement and did not forge Appellant=s signature to the statement.  Deputy Taylor stated he wrote down everything Appellant told him and Appellant read over the statement for several minutes. Deputy Taylor recalled telling Appellant at their first meeting that the punishment range was up to twenty years maximum, not a life sentence.

Ineffective Assistance Claim

Appellant argues he was denied effective assistance of counsel when his trial counsel failed to investigate the case and failed to call material witnesses who could contradict testimony of the State=s key witnesses, including the complainant. Appellant asserts that trial counsel should have investigated the Marfa Police Department=s reasons for its lack of interest in the case. Appellant also asserts that trial counsel failed to investigate the theory that C.N. may have been motivated by a desire to save her reputation.  Further, Appellant claims his trial counsel was ineffective for failing to call Appellant=s parents to elicit their testimony about the genial behavior of the girls on the morning after the alleged incident.

Appellant=s counsel, however, concludes that this case fails the prejudice prong of the Strickland test, because in Appellant=s written statement, he admitted to a consensual sexual encounter with C.N., who was under fourteen years of age.  At trial, Appellant recanted the statement, but as Appellant=s counsel notes, the trial court was well within its function as fact finder to weigh the evidence and evaluate the credibility of witnesses.  See Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App. 1995)(The trial court, as the trier of fact, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony).  We agree that Appellant has not shown that there is a reasonable probability that but for trial counsel=s deficient performance, if any, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  Thus, Appellant=s ineffective assistance of counsel claim fails. Appellant=s sole issue is overruled.

Independent Review of Record

We have carefully reviewed the entire record and counsel=s brief and agree that the appeal is wholly frivolous and without merit.  Further, we find nothing in the record that might arguably support the appeal.  We affirm the trial court=s judgment.

December 2, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)