David Eric Molinar v. State ( 2006 )

Affirmed and Memorandum Opinion filed September 26, 2006

Affirmed and Memorandum Opinion filed September 26, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00359-CR

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DAVID ERIC MOLINAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 999,250

M E M O R A N D U M   O P I N I O N

David Eric Molinar appeals a conviction for sexual assault of a child^[1] on the grounds that: (1) the trial court abused its discretion and denied his right to confrontation by excluding evidence of the complainant=s prior sexual activity; (2) his trial counsel=s closing argument denied appellant effective assistance of counsel; and (3) the evidence was legally and factually insufficient to support the verdict.  We affirm.

Appellant=s first and third issues assert that the trial court abused its discretion by excluding evidence of the complainant=s prior sexual activity because: (1) it was admissible under Texas Rule of Evidence 412(b)(2)(C) to show motive or bias; and (2) the prosecution opened the door to this evidence by eliciting testimony from the complainant that she was a virgin prior to having sexual intercourse with appellant.

We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard.  Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006) petition for cert. filed, __ US.L.W. __ (U.S. July 19, 2006) (No. 06-6055).  As  relevant here, in a prosecution for sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim is not admissible, and specific instances of an alleged victim=s past sexual behavior is admissible only if it relates to the motive or bias of the alleged victim and the probative value outweighs the danger of unfair prejudice.  Tex. R. Evid. 412(a), (b)(2)(C), (b)(3).  In addition, A[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness= credibility . . . may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.@  Tex. R. Evid. 608(b).

During the guilt-innocence phase of trial, appellant sought admission of testimony by the complainant regarding her past sexual behavior to rebut her testimony on direct that: (1)  she had staged a suicide attempt to gain sympathy and as a diversionary tactic because she didn=t want to tell on appellant or disclose that they had a relationship; and (2) she was a virgin.  Appellant contends that evidence of her prior sexual activity would have indicated her relationship with him was not the only reason behind her staged suicide attempt.^[2] Additionally, while appellant was later testifying before the jury, his counsel asked the trial court if he could go into the matters elicited from appellant during an offer of proof^[3] regarding the complainant=s prior sexual experience, without stating any basis for admission of the evidence.  After the State objected  (also without stating a basis) to such testimony, the trial court excluded the testimony, stating that the Aprejudicial value far outweighs any probative value based on the proffer. . . .@^[4] 

We find no indication in the record, either during trial or in any discussion outside the presence of the jury, that appellant sought admission of the excluded evidence under any part of rule 412 or on the basis that the prosecutor had Aopened the door@ to it.^[5] Nor does appellant=s brief challenge the trial court=s ruling that the evidence was unfairly prejudicial (i.e., even if related to motive or bias of the complainant).  Therefore, appellant=s first and third issues were not preserved for our review^[6] and are overruled.

Appellant=s second issue argues that the trial court=s exclusion of this same evidence violated his right of confrontation because it prevented him from confronting the complainant regarding her bias.  Again, however, an appellate court will not consider errors, even those of constitutional magnitude, not called to the trial court=s attention.  See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005).  Because appellant did not argue at trial that exclusion of the proffered evidence denied his right to confrontation, he has not preserved his second issue for our review,^[7] and it is overruled.

Appellant=s fourth issue complains the same evidence was admissible during the punishment phase of his trial in mitigation of punishment because the facts of the complainant=s past behavior mitigated the appearance of the relationship between her and appellant.^[8]

 Evidence may be offered by the defendant as to any matter the court deems relevant to sentencing, including the circumstances of the offense for which he is being tried.  Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon Supp. 2006). However, evidence of specific instances of an alleged victim=s past sexual behavior is admissible only for specified limited purposes, which do not expressly include mitigation of punishment.  See Tex. R. Evid. 412(b)(2)(B), (C).

Here, appellant does not explain how the complainant=s past sexual relationships with anyone else or the extent of the appearance of a relationship between him and the complainant have any bearing on punishment or mitigation, let alone for any purpose that would be permitted under rule 412.  Accordingly, appellant=s fourth issue does not demonstrate the trial court abused its discretion in excluding this testimony, and it is overruled.

Ineffective Assistance

Appellant=s fifth issue contends he was denied effective assistance of counsel because his trial counsel made the following comments during closing argument, which appellant complains suggested to the jury that his own lawyer doubted his credibility:

When [the prosecutor] talks to you in a moment, he=s going to do his very best job to convince you that my client is guilty.  He doesn=t know if he is guilty or not.  Neither do I.  We=re just the lawyers in the case summing up our parts in the case.  His job is to do his very best in presenting his case, which includes making the best arguments he can make.  I can=t respond to it.  I=m going to have to sit there and take it.  You can.

A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different.  Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 1059 (2005).  Counsel has wide latitude in deciding how best to represent a client and deference to counsel=s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategies at that stage, including foregoing jury argument altogether.  Yarborough, 540 U.S. at 6.  Finally, ineffective assistance of counsel cannot be established by isolating one portion of trial counsel=s performance for examination.  Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

We do not agree that the challenged statements indicate that appellant=s trial counsel doubted appellant=s credibility.  Even if such an inference could be drawn from them, the record does not contain any explanation of his counsel=s reason for making these comments,^[9] and appellant has cited no case in which such an indirect comment has been held to constitute ineffective assistance.  Nor does appellant=s brief demonstrate a reasonable probability that, but for such an isolated statement, the result of the proceeding would have been different. Therefore, appellant=s fifth issue fails to show ineffective assistance of counsel and is overruled.

Sufficiency of the Evidence

Appellant=s sixth and seventh issues assert that the evidence was not legally or factually sufficient to support his conviction because the complainant was the only witness to contradict his claim, supported by other witnesses, that he did not leave his house on the night in question, and her credibility was undermined by the inconsistencies in her statements at trial and her earlier statements to police officers, as well as her history of emotional and drug problems.

In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005), cert. denied, 74 U.S.L.W. 3246 (U.S. Oct. 17, 2005) (No. 05-5773).  In reviewing factual sufficiency, we view the evidence in a neutral light, both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, while adequate if taken alone, is greatly outweighed by contrary proof.  Id. at 730-31.

Here, the complainant described the events constituting the assault, which occurred when she was fourteen years old.  Even if this testimony had been uncorroborated, it would be sufficient to support the conviction.  See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005).  However, the complainant=s former best friend also testified that the complainant had told her after returning from being with appellant that she had had sex with him.  This evidence was legally sufficient to support appellant=s conviction.

Conversely, appellant testified that he and complainant did not engage in sexual intercourse, and presented several friends and family members who testified that they were present at appellant=s apartment on the night in question and that, to their knowledge, appellant never left the apartment that night.  However, all of these witnesses admitted that they had fallen asleep during the night, and several of them even stated that it was possible that appellant had left the apartment sometime during the night.

Although there is conflicting evidence, the proof of appellant=s guilt is not so obviously weak, nor does the contrary proof so greatly outweigh the State=s evidence, as to render the evidence factually insufficient.  Accordingly, appellant=s sixth and seventh issues are overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed September 26, 2006.

Panel consists of Justices Anderson, Hudson, and Edelman.

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

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^[1]           A jury convicted appellant and assessed punishment of 10 years confinement with a recommendation of community supervision.  The trial court entered judgment on the verdict, sentencing appellant to 10 years community supervision.

^[2]           Appellant made a bill of exception, in which, after asking the complainant about the number of sexual partners she had had before her relationship with appellant and her history of drug abuse, the complainant specifically denied that either of these factors had anything to do with her staged suicide attempt.  At the conclusion of this testimony, the following exchange occurred between appellant=s trial counsel and the trial court:

Defense Counsel: Do we just renew our request to be able to go into this information?

The Court:  All right.  Your request will be denied.  My ruling will be the same.

In any event, even if the complainant=s prior sexual activity was part of the reason for the staged suicide attempt, it is not apparent how that either shows motive or bias in accusing appellant of the assault or is otherwise probative of any other material issue.

^[3]           Appellant testified in an offer of proof that the complainant had told him about her sexual past, emotional problems, that her father had molested her when she was younger, and that, on the evening in question, another individual had forced himself upon her.  However, it is not apparent how this testimony shows a bias or motive of the complainant in accusing appellant of the assault.

^[4]           See Tex. R. Evid. 412(b)(3) (stating that evidence of specific instances of an alleged victim=s past sexual behavior is not admissible unless Aits probative value outweighs the danger of unfair prejudice@).

^[5]           A point of error on appeal must comport with the objection made at trial.  See Swain v. State, 181 S.W.3d 359, 364 (Tex. Crim. App. 2005), petition for cert. filed, __U.S.L.W. __ (U.S. Apr. 25, 2006) (No. 05-11514).

^[6]           See Reyna v. State, 168 S.W.3d 173, 176-77 (Tex. Crim. App. 2005).

^[7]           See Reyna, 168 S.W.3d at 179-80 (holding that when arguments for admission of evidence may be based on the Rules of Evidence or the Confrontation Clause, a defendant fails to preserve error on Confrontation Clause grounds when he does not clearly articulate that the Confrontation Clause demands admission of the evidence).

^[8]           The record reflects that, at the beginning of the punishment phase and outside the presence of the jury, appellant attempted to recall the complainant so that he could further Adevelop the sexual history . . . because now we=re in punishment and I don=t think that the shield rule applies in the punishment hearing.@  However, rule 412 is not limited in its applicability to the guilt-innocence phase of trial.  See Tex. R. Evid. 412; see also Eaves v. State, 141 S.W.3d 686, 693 (Tex. App. Texarkana 2004, pet. ref=d).

^[9]           See, e.g., Scheanette, 144 S.W.3d at 510.