John Wilson Herrera v. State ( 2009 )

Opinion issued June 25, 2009

Opinion issued June 25, 2009                                                                       

In The

Court of Appeals

For The

First District of Texas

 

NO.   01-08-00615-CR

 

JOHN WILSON HERRERA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

  Trial Court Cause No. 1102614

MEMORANDUM OPINION

After a jury found John Wilson Herrera guilty of the felony offense of aggravated sexual assault of a child under the age of 14, the trial court sentenced him to 15 years’ imprisonment.  Herrera appeals, contending that he was deprived of constitutionally effective assistance of counsel at trial because trial counsel failed to challenge the admission of the testimony of three of the State’s witnesses.  We conclude that Herrera has failed to make the required showing that his trial counsel’s representation was deficient and therefore affirm. 

Background

Statement of Facts

Thirteen-year-old S.S. and his mother traveled from their home in Florida to Houston in the summer of 2003 to visit extended family.  After their arrival, S.S.’s cousin, R.K., who is close to S.S.’s age, invited S.S. to stay overnight with him at Herrera’s apartment and then spend the next day at Astroworld.  Herrera is the brother of R.K.’s stepfather.  Although S.S. had never met Herrera before, R.K. had become familiar with him after numerous visits and overnights with him. After receiving permission from his mother, S.S. went with R.K. and Herrera.  

That night, Herrera and his apartment roommate made alcohol and marijuana available to the boys. Although S.S. had no previous experience with either, he tried to keep up with his cousin, and became ill. 

At Herrera’s suggestion, S.S. took a shower in the hope that it would help him feel better.  While S.S. was showering, he saw Herrera enter the bathroom with what appeared to be a videocamera trained at him.  S.S. yelled at Herrera to leave.  Herrera stated that he only meant to see if S.S. was all right, and left the bathroom. 

After showering, S.S. dressed in underwear and gym shorts, went into the bedroom, and lay down next to his cousin, who was already asleep.  Herrera entered the room and asked if S.S. wanted a massage, telling S.S. that his cousin liked massages after he had been drinking because they made him feel better.  Herrera began to massage S.S.’s back, then flipped S.S. over and removed his clothing.  Herrera then put his mouth in contact with S.S.’s genitals.  S.S. remained motionless with fright during this incident.   Afterward, Herrera left the room, but when S.S. awakened, he found Herrera beside him in the bed, in between S.S. and R.K. 

Embarrassed and ashamed about the incident, S.S. did not tell anyone about it until several years later, when he confided in his girlfriend after she revealed to him that she was a victim of childhood sexual abuse.  S.S.’s girlfriend told her mother about S.S.’s abuse.  Some time later, S.S.’s mother learned about the incident in passing during a conversation with the girlfriend’s mother and alerted the local police in Florida.  Detective C. Dehling interviewed S.S. and then turned the recording of the interview and the case over to the Houston Police Department’s Sex Crime Unit. 

Trial Court Proceedings

The jurors heard testimony from S.S., R.K., and Herrera.  Each told a different story about the events of that evening.  Herrera denied that any of the circumstances recounted by S.S. ever happened—he testified that he did not provide any alcoholic beverage or drugs, did not enter the bathroom while S.S. was showering, never touched S.S. inappropriately, and did not sleep in the same bed with R.K. and S.S. R.K. testified that he slept through the night the incident occurred, and that he probably would have awoken if Herrera had engaged in the conduct alleged by S.S.  The jurors also heard from the police investigators.  Because of the absence of any physical evidence, the jurors decided the case based solely on the witnesses’ testimony.

Discussion

To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  The first prong of this test requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness, in that counsel made such serious errors he was not functioning effectively as counsel.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812.  Thus, the defendant must prove objectively, by a preponderance of the evidence, that his counsel’s representation fell below professional standards.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  

The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Thompson, 9 S.W.3d at 812.  In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that the attorney’s performance falls within the wide range of reasonable professional assistance or trial strategy.  Thompson, 9 S.W.3d at 813. 

The record must firmly support a claim of ineffective assistance.  Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).  The record on direct appeal is usually not sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was reasonable and professional.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). 

          Herrera contends that trial counsel was ineffective because he failed to object to certain testimony from three witnesses: (1) testimony from Dr. Lawrence Thompson, the State’s expert, that testimony that false allegations of sexual abuse by children are extremely rare; (2) testimony from Detective C. Dehling, the Florida police officer who interviewed S.S., that she had no reason to doubt S.S. was telling the truth; and (3) testimony from Detective M. Gallagher of the Houston Police Department that she determined S.S.’s report of sexual abuse was credible.  We address each witness’s testimony in turn.

          Dr. Thompson’s testimony

Herrera contends that trial counsel rendered ineffective assistance by failing to object to Dr. Thompson’s testimony as inadmissible under Texas Rule of Evidence 702.  Under this rule, an expert may not proffer an opinion as to the veracity of a particular witness, or class of persons to whom the witness belongs.  Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993).  An opinion about another’s truthfulness does more than “assist the trier of fact to understand the evidence or to determine a fact in issue”; it decides an issue for the jury.  Id. at 709; Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  The jury alone is to decide whether a particular witness’s testimony is credible.  Yount, 872 S.W.2d at 711.

In its case in chief, the State called Dr. Thompson, the director of therapy and psychological services at Harris County Children’s Assessment Center, to provide expert testimony about “delayed outcry,” the time lapse between when some child victims of sexual abuse suffer the abuse and when they first disclose the abuse to another person.  Dr. Thompson explained that in more than 50 percent of child sexual abuse cases, some delay in disclosure occurs, and that the fact of delay does not, by itself, raise a question about the child’s credibility.  The State also elicited testimony from Dr. Thompson describing characteristics of sex offenders, common characteristics of potential victims of child sexual abuse as well as possible psychological effects that sexual assault has on children.

Herrera’s trial counsel extensively cross-examined Dr. Thompson about the possibility that a child might make false allegations of sexual abuse:

Q.      As a clinician and in your training you were taught to look for false allegations; is that correct?

A.      Could you be more specific?  You say I was taught to look for false allegations?

Q.      You’re aware that false allegations can occur?

A.      I am aware that false allegations can occur.

Q.      And, as a clinician, when you interview somebody, that would be something you would take into account, right?

A.      Yes.

Q.      I mean, you wouldn’t automatically assume just because the child said—or is sitting in front of you that—I know you wouldn’t voice this to the child, but you wouldn’t automatically assume this child is telling the truth without hearing a word the child said, right?

A.      No.  I mean, in fact and in the way of doing mental health work, psychotherapy, you just try and meet the child where they are at, wherever they are at.

Q.      Right.  I mean, because making a false allegation like this could be a sign of a different mental health issue, right?

A.      Could be.

Q.      Now, you said delayed outcry occurs in roughly 50 percent of these cases, is that right?

A.      Over 50 percent.  You know, different studies point to different numbers; but what I can say is generally that number – that there is a delayed outcry in more than half of all cases. 

Defense counsel pursued some other lines of inquiry, but returned to the issue of false allegations, asking Thompson, “Is it possible that in order to try and gain trust or favoritism with a girlfriend, a 16- or 17-year-old could fabricate or lie about a sexual assault?” Thompson responded, “No. That’s not anything I ever encountered.” Defense counsel continued:

Q. Do you think it’s hypothetically possible?

A.      I think most anything is hypothetically possible, but that type of fabrication is not something that I have encountered.  And so it’s possible, but definitely not probable in my clinical experience.

Q.      Well, let me ask you this:  Doctor, if this hypothetical boy sees the girlfriend getting favorable treatment and being excused from her grades falling and things like that, do you think that might lead him to make a false disclosure?

A.      No.  No.  What the literature and what my experience shows with regard to false disclosure is that . . . there is typically an element of coaching of a child, but I cannot tell you of one instance where a child has seen another child getting preferential treatment because they were sexually abused and then saying, “Let me say I have been sexually abused, too,” to get the same preferential treatment.  That has not been my experience.

Q.      In a hypothetical situation, what about if it’s for a sexually active girl, hypothetically, sexually active boy, hypothetically, trying to gain trust with that girl to say, “I was sexually abused, also,” to build that bond?  Do you think that could happen?

A.      Again, you know, anything is possible; but in my clinical experience and my knowledge of the literature, those are not the triggers for false allegations of abuse that we see.

Q.      But then again, you have not examined [S.S.] in this case, have you?

On redirect, the State sought to rehabilitate Dr. Thompson on the issue of false allegations, asking, “What about when you’re asked about false allegations or false disclosure, is that more likely to happen or less likely?”  Dr. Thompson responded:

It’s less likely.  I was able to reference this myself, that I speak of false allegations of abuse, but false allegations of abuse are very rare.  Kids do not tend to make up allegations of child sexual abuse.  In my clinical experience, and the literature supports this, in less than 2 to 3 percent at most of all cases which there is an allegation of sexual abuse is a child being coached or making a false allegation of abuse.  It’s statistically a very rare phenomen[on], but it does—but it can happen.

Herrera contends that Dr. Thompson improperly offered a direct opinion as to another witness’s veracity. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).  In Lane v. State, our sister court sustained a challenge to Dr. Thompson’s nearly identical testimony in that case, concluding that, “Dr. Thompson’s testimony that false accusations of childhood sexual assault are very rare had the effect of telling the jury they could believe [the complainant’s] testimony, which is expressly forbidden.”  257 S.W.3d 22, 27 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).  In this case, however, it was not the State, but rather defense counsel who initiated the questioning about the possibility that a hypothetical child, meeting S.S.’s description, might make a false allegation of sexual abuse.  If one party opens the door to an issue, the party’s opponent may fully explain that issue even if the evidence presented to do so would not ordinarily be admissible.  Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1997); Fisher v. State, 121 S.W.3d 38, 40–41 (Tex. App.—San Antonio 2003, pet. ref’d) (holding defense opened the door to questions concerning whether child was telling the truth). An opposing side has a right to reply and correct a false impression left with the jury.  Reynolds v. State, 227 S.W.3d 355, 366–67 (Tex. App.—Texarkana 2007, no pet.).  But, the party offering the evidence may not “stray beyond the scope of the invitation.” Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981), quoted in Bush v. State, 773 S.W.2d 297, 301 (Tex. Crim. App. 1989); see Schutz, 957 S.W.2d at 71.

The record here reveals Herrera’s trial counsel’s questioning of Dr. Thompson, in which counsel posited that a hypothetical child, with a description nearly identical to the complainant’s, fabricated his report of sexual abuse.  This questioning opened the door to Dr. Thompson’s otherwise objectionable testimony.  See Fisher, 121 S.W.3d at 40.  Because trial counsel’s cross-examination invited the testimony Herrera complains of here, it would not have been fruitful for counsel to object to it.[1] We therefore hold that trial counsel’s failure to object to Dr. Thompson’s testimony was not constitutionally deficient.

Detective Dehling’s testimony

The State of Texas brought Detective Dehling from Florida to testify about her interview of S.S. Detective Dehling explained that, at the time of the interview, she worked in the police department’s sex crimes unit, specializing in child abuse investigations.  After having her testify about the investigation procedures and interview techniques she used, the State elicited details from Detective Dehling concerning the interview:

Q.      Now, what was [S.S.]’s demeanor at the beginning of the interview?

A.      He was somewhat quiet and reserved, and he appeared afraid or embarrassed to be very detailed about the incident.

Q.      And was he able to give you appropriate responses?

A.      Absolutely, yes.

Q.      . . .  So, would you say that his responses were detailed or not?

A.      To the best of his ability to be detailed . . . they were.

* * *

Q.      Now, throughout your interview with [S.S.], did his demeanor change at all?

A.      To the best of my recollection, when it came to . . . the actual description of the sexual act, he appeared to be embarrassed to . . . fully disclose what had occurred.

* * *

Q.      Would you say that [his] responses were consistent with someone who had been sexually assaulted?

A.      Well, it’s hard to say consistent because everybody is different; but I can say I had absolutely no reason to doubt the things he was telling me were true.

          There is a “fine but essential” line between helpful expert testimony and impermissible comments on credibility.  Schutz, 957 S.W.2d at 60 (quoting State v. Myers, 382 N.W.2d 91, 98 (Iowa 1986)).   For instance, an expert witness’s testimony that, in her opinion, the child does not exhibit indications of coaching does not constitute an opinion on the child’s ultimate truthfulness.  See Reynolds, 227 S.W.3d at 366; see also Schutz, 957 S.W.2d at 73; Burns v. State, 122 S.W.3d 434, 437 (Tex. App—Houston [1st Dist.] 2003, pet. ref’d) (expert’s testimony regarding psychological test results, which suggested victim answered questions in open, non-defensive, and truthful manner, did not constitute impermissible comment on victim’s truthfulness). 

          In contrast, the Texarkana court of appeals, in Fuller v. State, held that defense counsel was constitutionally ineffective by not objecting to the State’s question to its child advocacy center forensic expert, who had interviewed the child complainant, as to whether, after observing the complainant’s conduct and her description of the incident at issue, the expert had formed an opinion as to whether the complainant was being truthful.  224 S.W.3d 823, 835 (Tex. App.—Texarkana 2007, no pet.).  The expert responded that she “saw nothing in [the complainant’s] demeanor and nothing in the information that she gave me that indicated that she was not being truthful with me.”  Id.; see also Miller v. State, 757 S.W.2d 880 (Tex. App.—Dallas 1988, pet. ref’d) (finding trial counsel ineffective because of failure to object to State’s questions eliciting forensic interviewer’s opinion on whether child was, in fact, sexually abused and whether child’s report of sexual abuse was truthful).   

Herrera likens Detective Dehling’s testimony to the prohibited testimony in Fuller.  The difference between this case and Fuller, however, lies not with each witness’s answer, but with the question that elicited it.  Texas courts consistently have held the failure to object to the repeated elicitation and offer of this type of testimony to constitute ineffective assistance of counsel when presented on direct review.  Fuller, 224 S.W.3d at 836 (citing Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d), Miller v. State, 757 S.W.2d 880, 844 (Tex. App.—Dallas 1988, pet. ref’d), and Garcia v. State, 712 S.W.2d 249, 253 (Tex. App.—El Paso 1986, pet. ref’d)).  The Fuller court held that “[t]he State’s elicitation of [the expert]’s testimony regarding her expertise in determining truthfulness and credibility, and her particular determination of [the complainant]’s truthfulness, are express error.”  Id. at 835.

          Here, the State’s question as to whether S.S.’s responses were consistent with someone who had been sexually assaulted, sought permissible testimony.  See Cohn v. State, 849 S.W.2d 817, 818–19 (Tex. Crim. App. 1993) (holding that trial court may admit expert testimony that child exhibits behavioral characteristics shown to be common among children who have been abused); Burns, 122 S.W.3d at 437.  Given that the question itself was not objectionable, and the witness’s response was brief and occurred only in passing, Herrera’s trial counsel could have reasonably concluded that an objection would have highlighted the unsolicited testimony to his client’s detriment.  See Tong v. State, 25 S.W.3d 707, 713–14 (Tex. Crim. App. 2000) (holding that reviewing court must presume that counsel had plausible reason for his actions). We therefore hold that the trial counsel’s performance was not constitutionally ineffective because of his failure to object to Detective Dehling’s testimony.

Detective Gallagher’s testimony

The State presented Detective Gallagher to testify concerning her involvement in investigating the reported abuse.   In its direct examination, the State elicited the following testimony concerning the investigation procedure:

Q.      Procedurally, once you’re done with your investigation, what are your options? . . .

A.      Either present it and proceed on with charges or inactivate it pending more evidence or someone else to come forward; or inactivate it because I didn’t feel the complainant was being truthful or so forth, where I didn’t feel comfortable to go on beyond signing my name to an affidavit saying that I felt . . . there was enough probable cause there. . . .

Q.      Okay. So, in this case you didn’t close it out as inactive.

A.      No, ma’am. 

During cross-examination, Herrera’s counsel questioned Detective Gallagher on her handling of the investigation. When Detective Gallagher indicated that she had spoken again with S.S. after interviewing S.S.’s girlfriend and other witnesses, counsel asked:  “So, basically, you confronted him with inconsistencies; and he stayed consistent with his original interview.  Would that be fair enough?”  Detective Gallagher responded that it was.  At the end of his cross-examination, counsel pursued the following line of inquiry:

Q.      When an investigation is, your quote, complete, and you present it to the D.A., you have the option of not even taking the case to the district attorney; is that right?

A.      Yes, sir.

Q.      Okay.  And one of the reasons you gave is because you didn’t feel like the complainant was being truthful in situations like that?

A.      In most circumstances, yes.

Q.      Okay. So, you would agree with me there are allegations like this that in your opinion turn out to be false?

A.      Yes.

The testimony Herrera complains of occurred during the State’s redirect examination:

Q.      When you interviewed [the other witnesses], or even the defendant, . . . were there inconsistencies you found that differed from [S.S.]’s version?

A.      Yes, ma’am.

Q.      Okay.  So, when you confronted [S.S.] about the inconsistencies, . . . when he responded to your questions, were his answers consistent with the audio recorded statement?

A.      Yes.

* * *

Q.      Okay.  So, were you able at some point to make a determination as to his credibility?

A.      Yes.

Q.      If you hadn’t thought he was credible or truthful, you would have closed it out as inactive?

A.      Yes.

Q.      And did you do that?

A.      No.

In contending that his trial counsel’s failure to object amounted to constitutional error, Herrera again relies on Fuller, in which the court of appeals condemned the following testimony elicited from the police investigator:

Q.      Did you make a determination whether [the complainant] was credible prior to filing the arrest warrant?

A. I did.

Q. Did you find her credible?

A. Yes, sir.

The Fuller court concluded that this testimony was prohibited because the State directly elicited its expert’s opinion concerning the complainant’s credibility.  Fuller, 228 S.W.3d at 835.  The testimony in this case falls on the other side of the fine line.  In contrast to the prohibited line of inquiry in Fuller, the State’s questions appear aimed to rebut the impression created by defense counsel’s cross-examination that S.S. had changed details in his report not because they were truthful, but to conform to those reported by other witnesses, and to address defense counsel’s elicitation of the witness’s opinion that “allegations like this” can “turn out to be false.”  Further, in its direct, the State in this case focused carefully on the procedural aspects of the detective’s investigation and did not ask her opinion concerning the credibility of the complainant.  We hold that the absence of an objection by Herrera’s trial counsel does not show that his representation fell below an objective standard of reasonableness.  See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. 

Conclusion

Herrera has not borne his burden to rebut the presumption that trial counsel made all significant decisions in the exercise of reasonable professional judgment.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Keyes, Hanks, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1] Herrera does not complain about his counsel’s strategy in cross-examination.