Charlton Tipton v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00385-CR

Charlton Tipton,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 03-06-07270

MEMORANDUM Opinion

          Charlton Tipton was charged by indictment with the offense of aggravated sexual assault.  Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2004-05).  He was tried before a jury and found guilty.  He pled true to an enhancement count, and the jury assessed punishment at life imprisonment.  Tipton brings these issues on appeal: (1) the trial court erred in admitting evidence of an alleged extraneous sexual assault offense at the guilt-innocence phase of the trial in violation of Rules 401, 403, and 404 of the Texas Rules of Evidence; and (2) he was denied his right to effective assistance of counsel.

          Finding error but no harm, we will affirm the judgment.

Background

          The alleged victim was Tipton’s daughter, who was ten years old at the time of the alleged offense.  She testified that Tipton sexually assaulted her on several occasions.  One of those occasions was the charged sexual assault alleged to have occurred in Hamilton, Texas.  A pediatric nurse testified that her examination of the child revealed tears consistent with sexual penetration.  The child’s aunt testified as an “outcry witness.”  Her testimony also partially corroborated the child’s account of one of the uncharged sexual offenses.  The child’s mother, Tipton’s mother, and Tipton’s sister also testified.  Two inmates testified to admissions by Tipton regarding sexual contact with children.  Another inmate was called by the defense to rebut the admission testimony.

Admission of Evidence

          Tipton contends that the trial court erred in admitting evidence in the guilt-innocence phase concerning other offenses committed by the defendant in violation of Rules 401, 403, and 404(b) of the Texas Rules of Evidence.  Tipton testified in his own defense.  When asked by his defense counsel if the sexual assault alleged by his daughter occurred, he stated, “No sir, I did not do that.  I could never hurt my daughter like that.”  Prior to its cross-examination of the defendant, the State argued to the court that Tipton’s statement “opened the door” to allow the prosecution to question Tipton about an alleged sexual assault of a minor of which he was never convicted but which was used to revoke his probation for another offense.  Defense counsel argued that Tipton’s statement was limited to conduct towards his daughter.  The trial court allowed the prosecution to cross-examine Tipton about the extraneous offense.

          The State may be allowed to dispel a false impression left by the accused about his past by introducing evidence of specific instances of bad conduct for which he is not on trial, a subject which is usually irrelevant, collateral, and thus inadmissible.  Theus v. State, 845 S.W.2d 874, 878 (Tex. Crim. App. 1992).  When the defendant in a sexual abuse case has stated during direct examination that he has never molested anyone else, the State is allowed to bring in rebuttal testimony of the defendant's extraneous sexual offenses, including sexual abuse of other children besides the victim.  See Creekmore v. State, 860 S.W.2d 880, 892 (Tex. App.—San Antonio 1993, pet. ref’d).  Tipton, however, did not testify to his conduct in general or his conduct regarding anyone other than his daughter.  The State argues that the inclusion of the words “I could never” makes the statement a blanket or sweeping statement that creates a false impression of his character—that he is a person incapable of molesting children. We disagree.  The State’s reading ignores the specific predicate of Tipton’s sentence: “hurt my daughter like that” (emphasis added).  The court could therefore have allowed the prosecution to rebut Tipton’s testimony with other instances of misconduct with his daughter (evidence of several such incidents was introduced, not as rebuttal evidence but as evidence to show prior relationship).  However, Tipton’s testimony created no impression that he was incapable of such conduct generally or had never committed similar acts upon other minors.  Thus the extraneous offense against a different victim did not fall within the false impression exception.  Nor was the evidence relevant to prove a material issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Tex. R. Evid. 404(b).  The trial court abused its discretion in admitting evidence that was probative only of Tipton’s character and propensity to sexually assault children.

Harm Analysis

          Finding error, we must now determine whether Tipton was harmed.  Error under the rules of evidence in admitting evidence of extraneous offenses is non-constitutional error governed by Rule of Appellate Procedure 44.2(b).  Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).  In conducting a harm analysis under Rule 44.2(b), we decide “whether the error had a substantial or injurious effect on the jury verdict.”  Morales v. State, 32 S.W.3d 866, 867 (Tex. Crim. App. 2000).  The reviewing court should “consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the error and how it might be considered in connection with other evidence in the case[,] . . . the jury instruction given by the trial judge, the State’s theory and any defensive theories, closing arguments, and voir dire if material to appellant’s claim.  Id.

          The alleged victim testified that Tipton sexually assaulted her as charged and that he sexually assaulted her on other occasions.  Her testimony that she had been sexually abused was corroborated by the pediatric nurse who examined her.  Her testimony regarding one of the other sexual assaults was partially corroborated by her aunt.  Two of her relatives testified to arguments each had with Tipton over his insistence on sleeping in the same room as his daughter.  One inmate testified that he heard Tipton acknowledge sexually assaulting his daughter and a second inmate testified, without objection, that Tipton boasted of having sex with minor girls.  The trial court instructed the jury not to consider evidence of offenses other than the offense alleged in the indictment for any purpose other than determining the relationship of the parties.  Unfortunately, the prosecution referred to the extraneous offense in its closing argument.  After reviewing the record as a whole, however, we conclude that the error probably did not influence the jury or had only a slight influence on its verdict.  Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).  Finding the error to be harmless, we overrule this issue.

Ineffective Assistance of Counsel

          Tipton argues that he was denied his right to effective assistance of counsel because his trial counsel did not make an opening statement to the jury; failed to present evidence during the punishment phase; failed to object to the trial court’s exclusion of defensive evidence or make a record of the excluded evidence; failed to object to the State’s opening statement; impliedly suggested punishment of life during voir dire; made comments about the heinous nature of the offense; and failed to ask the court for a limiting instruction on extraneous offenses.

          To establish a claim of ineffective assistance of counsel, the appellant must show that counsel’s assistance fell below an objective standard of reasonableness and that counsel’s deficient performance, if any, prejudiced the defendant.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984).  The review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  When the record is silent as to defense counsel’s subjective motivations, we will ordinarily presume that the challenged action might be considered sound trial strategy.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

          There is no record of trial counsel’s strategy or motivations for most of the actions or inactions of which Tipton complains.  However, trial counsel signed an affidavit attached to Tipton’s motion for new trial and testified at the hearing concerning excluded defensive testimony and his reasons for not attempting to offer certain testimony and mitigating evidence during the punishment phase.  Tipton has not overcome the presumption that counsel’s actions or inaction might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).  We overrule this issue.

CONCLUSION

          Finding error but no harm, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 2, 2005

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