Tomlinson, James David v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 27, 2006

Affirmed and Memorandum Opinion filed April 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01126-CR

NO. 14-04-01127-CR

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JAMES DAVID TOMLINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause Nos. 987,198 & 987,651

M E M O R A N D U M   O P I N I O N

Appellant James David Tomlinson was convicted of aggravated sexual assault of a child under two separate indictments and sentenced to twenty-five years= confinement in each case, to run concurrently.  In a single issue, appellant claims he received ineffective assistance of counsel at trial.  We affirm.

Appellant lived in Indiana with his daughter C.T., his son, and his first wife, who was the children=s mother, until 2002.  In 2002, when C.T. was five years old, appellant=s wife died.  Thereafter, appellant and the children briefly lived in Kansas before moving into appellant=s father=s apartment in Houston.  In Houston, appellant met his second wife, Kelly.  He moved with his children into Kelly=s house in January 2003 and married her the following November.

On May 8, 2004, Kelly arrived home and found C.T. and appellant locked in a bedroom together.  Appellant opened the door after Kelly knocked.  When Kelly asked appellant what he and C.T. were doing in the bedroom, appellant claimed he had just spanked C.T. because he caught her stealing. However, Kelly was suspicious because C.T. did not appear upset as though she had been spanked and seemed surprised when Kelly later confronted her about stealing.  Consequently, Kelly asked her friend Joann Chavira to talk to C.T. about what she and appellant were doing in the bedroom.  When Chavira and C.T. were alone that evening, Chavira questioned C.T., who told Chavira that she was having Aoral sex@ with appellant in the bedroom.^[1]  Later the same evening upon Chavira=s request, C.T. repeated this information for Kelly, who immediately took C.T. to the police and the hospital.  At the hospital, forensic nurse examiner Sandra Martin examined and interviewed C.T.  C.T. told Martin that appellant Atried to have oral sex with [her]@ and had put his penis in her vagina and anus about five days earlier.  Police arrested appellant later that night, and the State charged him with sexual assaulting C.T. on April 2, 2004 and May 8, 2004.  After a consolidated trial, appellant was convicted in each case.  He filed separate motions for new trial that were overruled by operation of law.  This appeal followed.

At trial, C.T. testified that appellant repeatedly sexually assaulted her, beginning when they lived in Indiana and continuing in Kansas and Texas.  She had difficulty recalling details about the sexual assaults.^[2]  On cross-examination, she indicated that appellant put his penis in her mouth on May 8, 2004 and in her anus and vagina before that day. 

The State called several experts, including Martin, Child Protective Services (AC.P.S.@) case worker Angela Burrell, who was assigned to C.T.=s case, and Houston Police Department (AH.P.D.@) investigator Heidi Ruiz.  Martin testified that her examination of C.T. revealed symptoms potentially attributable to sexual abuse.^[3]  Martin noted that none of C.T.=s symptoms alone was unusual, but together they created a Ahigh suspicion@ of sexual abuse.  She also testified that Amore than 50 percent of the time there are no genital injuries on children who are victims of sexual abuse,@ even when sperm is found or the offender confesses.  Ruiz testified that during her investigation, she reviewed C.T.=s statements regarding the abuse, including H.P.D.=s offense report and the Children=s Assessment Center=s (AC.A.C.@) videotape, neither of which were introduced into evidence. Ruiz said she found Ano inconsistencies@ among C.T.=s statements.  Burrell testified that she Asaw the narrative from the investigator=s work@ but not Athe tape,@ and said that after C.P.S.=s investigation, C.P.S. found A[r]eason to believe@ C.T.=s sexual abuse claim.

In his sole issue, appellant claims his trial counsel was ineffective in failing to (1) engage in pretrial discovery of the State=s experts or object to their trial testimony, (2) seek a limiting instruction on extraneous offenses,^[4] (3) require the State to make an election as to which offenses it relied upon for conviction, and (4) object to improper closing argument by the State.^[5] 

Ineffective assistance claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984).  To prove ineffective assistance, appellant must show (1) that counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance.  Salinas, 163 S.W.3d at 740.  To defeat this presumption, A>any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.=@  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).  Without specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813B14. Further, without such explanation, we do not find deficient performance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@  See Goodspeed v. State, No. PD-1882-03, __ S.W.3d __, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  An affidavit from trial counsel becomes almost vital to the success of a claim for ineffective assistance of counsel if there is no hearing or if counsel does not appear at the hearing.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

Here, appellant filed separate but substantively identical motions for new trial that included general allegations of ineffective assistance of counsel but were unaccompanied by affidavits or explanations for counsel=s decisions.  Appellant did not request a hearing on these motions.  He subsequently filed an AOut of Time Appeal for a New Trial@ raising different complaints about counsel=s performance than those he presents on appeal.  Thus, the record is silent regarding counsel=s decisions about which appellant now complains. 

Appellant first complains that counsel was ineffective in failing to file pretrial discovery motions regarding the State=s expert witnesses, which he contends would have allowed him to preview their opinions.  However, the failure to file such pretrial motions could have been the result of trial strategy.  See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.CHouston [14th Dist.] 1997, no pet.).  Further, it is unclear whether counsel could have otherwise obtained the State=s expert list, thus rendering unnecessary the filing of pretrial motions for disclosure of the State=s experts.^[6]  Because counsel=s reasons for not filing such motions could have been strategic, without an affirmative demonstration of counsel=s ineffectiveness in the record, appellant fails to overcome the strong presumption that counsel=s conduct was reasonable.  See Thompson, 9 S.W.3d at 814. 

Appellant next claims counsel was ineffective in failing to object to the trial testimony of three of the State=s experts.  Specifically, he alleges that (1) Burrell impermissibly commented on C.P.S.=s opinion of his guilt by testifying that C.P.S. found reason to believe that he sexually abused C.T., (2) Martin improperly testified about the cause and diagnosis of C.T.=s injuries despite her statement on cross-examination that A[she is] not a medical expert in that field,@ and (3) Ruiz impermissibly commented on his guilt and on facts not in evidence when she testified that she found Ano inconsistencies@ among C.T.=s statements, including the police statement and the C.A.C. videotape that were never admitted into evidence.  Counsel=s failure to object could have been the result of sound trial strategy.  See Banks v. State, No. 14-00-00650-CR, 2002 WL 27265, at *4 (Tex. App.CHouston [14th Dist.] Jan. 10, 2002, pet. ref=d) (not designated for publication) (A[F]ailure to object to even inadmissible evidence can constitute a plausible trial strategy.@); Varughese v. State, 892 S.W.2d 186, 196  (Tex. App.CFort Worth 1994, pet. ref=d) (noting that failure to object can be part of trial strategy to be open and honest with jury).  As previously discussed, the record is silent as to why counsel did not object; thus, appellant fails to overcome the presumption that counsel made a reasonable decision not to object to the witnesses= testimony.  See Thompson, 9 S.W.3d at 814; Jones v. State, No. 14-03-00499-CR, 2004 WL 438676, at *5 (Tex. App.CHouston [14th Dist.] Mar. 11, 2004, pet. ref=d) (not designated for publication) (finding silent record insufficient to establish whether counsel was deficient by failing to object to trial testimony). 

Third, appellant contends counsel was ineffective in failing to request a limiting instruction on extraneous evidence that he sexually assaulted C.T. on more occasions than were charged in his two indictments.  Specifically, appellant argues that although the State charged him with one count each of orally and vaginally penetrating C.T., the jury heard witness testimony that he penetrated C.T. orally, anally, and vaginally on numerous other occasions.  Although appellant concedes these extraneous offenses may have been admissible under Texas Evidence Rule 404(b) and article 38.37 of the Texas Code of Criminal Procedure, he claims that counsel should have requested a limiting instruction to prevent the jury from considering them for any purpose beyond that for which they were admitted.  Again, the record contains no explanation for counsel=s failure to request a limiting instruction, but it does indicate that he approved the jury charge, which contained a limiting instruction. We find that, based on this record, appellant fails to overcome the presumption that counsel=s failure to request a limiting instruction was reasonable.  See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (finding ineffective assistance in habeas proceeding when counsel filed affidavit stating that failure to request limiting instruction was oversight, not trial strategy); Mendez v. State, No. 13-03-127-CR, 2005 WL 1845632, at *2 (Tex. App.CCorpus Christi Aug. 04, 2005, pet. ref.=d) (not designated for publication) (holding silent record insufficient to support ineffective assistance claim for counsel=s failure to request limiting instruction on extraneous offense).

Appellant further argues that counsel was ineffective for failing to require the State to elect the specific offense upon which it relied for conviction.  The general rule is that where an indictment alleges one instance of sexual assault and the trial evidence shows more than one instance, the State must elect the offense upon which it relies for conviction. O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). Before the State rests its case in chief, the trial court has discretion whether to direct the State to make an election.  Id. at 772.  After the State rests, upon timely request by the defense, the trial court must order the State to make an election, and failure to do so constitutes error.  Id.  Here, the State introduced testimonial evidence of more than the two instances of sexual assault alleged in appellant=s indictments, and counsel did not request elections at the close of the evidence.  However, failing to request elections could have been sound trial strategy.  See Peterson v. State, No. 01-02-00603-CR, 2003 WL 22681607, at *4 (Tex. App.CHouston [1st Dist.] Nov. 13, 2004, pet. ref=d) (not designated for publication) (explaining that double jeopardy bars subsequent prosecution for any offense evidenced at trial if the State fails to elect which particular offense it relies upon for conviction). Because the record is silent as to counsel=s reasons for not requesting an election, which could have been a strategic choice, we cannot presume counsel=s decision was unreasonable.  See Thompson, 9 S.W.3d at 814.

Finally, appellant argues that he received ineffective assistance because counsel failed to object to the prosecutor=s misstatement of law during her closing argument. However, having reviewed the record, we disagree with appellant that the prosecutor misstated the law.  The jury charge contained the following instructions:

[A] conviction may be had upon proof beyond a reasonable doubt that the offense, if any, was committed at any time within the period of limitations.  The limitation period applicable to the offense of aggravated sexual assault of a child is ten years from the date of the 18th birthday of the victim of the offense.

In his closing argument, appellant=s counsel stated:

The second offense of penetrating [C.T.=s] vagina and anal opening, there was never even a time or date put on that other than the confused testimony as to whether it was May 8th or not May 8th or anything of this nature.  So I don=t even think that that was even proven by the prosecution.

Defense counsel concluded after this statement, and the prosecutor began her closing argument as follows:

In voir dire we talked about what the on or about language means.  And if you look [at the jury charge] . . . you will find an instruction that says that the State is not bound by the specific date which the offense, if any, is alleged in the indictment to have been committed but that conviction may be had upon proof beyond a reasonable doubt that the offense, if any, was committed at any time between the period of limitation.  The limitation period applicable to the offense of aggravated sexual assault of a child is ten years from the date of the 18th birthday of the victim of the offense.  Well, . . . she turned eight last Tuesday, so any offense that would have occurred, that you believe beyond a reasonable doubt has occurred, has occurred within the period of the statute of limitation.

(emphasis added). Appellant claims this language allowed the jury to convict him non-unanimously or for offenses committed in other states.  Although the prosecutor=s statement, standing alone, could be construed as inviting the jury to convict appellant of extraneous offenses presented at trial, viewed in context, it was clearly made in response to defense counsel=s claim that the State failed to prove the dates of the charged offenses and was intended to illustrate the limitations period in the jury instructions.  This was not improper jury argument, and thus counsel was not deficient in failing to object to it.  See Chatham v. State, 889 S.W.2d 345, 352 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d) (finding counsel was not ineffective for failing to object to prosecutor=s alleged misstatement of the law during closing argument when statement was proper). 

Having rejected all appellant=s separate grounds for ineffective assistance of counsel, we overrule his sole issue and affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed April 27, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  According to Chavira, when she asked C.T. what she meant by Aoral sex,@ C.T. explained that appellant Apulled his pants down, he pulled out his private part and told [C.T. that she] could either suck it or he=d stick it in [her].@

^[2]  C.T. first testified that appellant put his penis in her vagina, mouth, and anus on May 8, 2004, the day Kelly found them in the locked bedroom together.  She then said she did not remember exactly what he did that day or when he put his penis in her vagina, but she remembered he put his penis in her vagina once before and in her mouth and anus on multiple occasions.  

^[3]  Martin testified that she examined C.T.=s hymen and found small abnormalities that could be caused by chronic rubbing or wearing.  She also testified that C.T.=s hymen had an irregular narrowing that could indicate an old, healed tear.  Additionally, Martin noted that C.T.=s anus dilated rapidly and had a venous injury and a fissure, which could indicate chronic anal penetration or a large bowel movement.  Finally, Martin testified that she saw broken blood vessels in the back of C.T.=s throat that could be caused by trauma.

^[4]  Although in a heading in his brief, appellant claims counsel was ineffective for failing to object to extraneous offenses, he offers neither argument nor authorities on this issue; rather, it only nominally appears in his heading.  Thus, he has waived this issue for appellate review.  Tex. R. App. P. 38.1(h).

^[5]  Appellant claims the alleged ineffectiveness violated his federal and state constitutional rights.  Because he makes no meaningful distinction between these rights, we consider his federal constitutional claim only.  See Ruth v. State, 167 S.W.3d 560, 567 n.3 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

^[6]  The State suggests counsel may have obtained its expert list through an Aopen file@ policy, which appellant does not refute.