Samson Perez Casiano v. State , 462 S.W.3d 174 ( 2015 )

Opinion issued February 10, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00020-CR
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SAMSON PEREZ CASIANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1178978
OPINION
A jury found Samson Perez Casiano guilty of the offense of aggravated
sexual assault of a child. After he pleaded true to a prior offense, the trial court
sentenced Casiano to thirty years’ confinement. On appeal, he contends that he
was deprived of constitutionally effective assistance of counsel. We conclude that
Casiano has failed to show ineffective representation; we therefore affirm.
Background
In 2004, J.A., the complainant, lived with her mother and her mother’s
husband. In October of that year, J.A.’s mother and her husband celebrated their
anniversary at a hotel. J.A. stayed at home with Samson Casiano, the appellant,
and Casiano’s son. J.A., who was 12 years old at the time, testified that she was
lying on her bed in her room. Casiano entered her room and closed the door. He
approached J.A. and put his arm across her back, holding her down with force,
whereupon he pulled down J.A.’s basketball shorts, pulled out his penis, and
inserted it into J.A.’s anus. J.A. testified that it “hurt like hell.” Casiano warned
J.A. not to tell anyone else what happened. Casiano attempted a similar assault on
a later occasion, but his son entered the room as it was happening; Casiano stopped
the assault and angrily left.
J.A. did not inform her mother about the assaults. A few years later, when
J.A. was living with her father, he overheard J.A. telling a friend on the phone
about the sexual assaults. J.A.’s father asked J.A. about the conversation, and she
revealed the assaults to him. Susan Odhiambo, a forensic interviewer with the
Children’s Assessment Center, interviewed J.A. during a Child Protective Services
investigation.
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Course of Proceedings
After the trial, in November 2009, Casiano moved for a new trial,
contending that jurors had committed misconduct by considering testimony in their
deliberations that the trial court had instructed them not to consider. Casiano
further contended that jurors had concluded improperly that complainant’s video
interview with Odhiambo would have demonstrated Casiano’s guilt had they been
allowed to view it. The trial court denied the motion without a hearing.
In April 2010, Casiano untimely noticed his appeal. We determined that we
lacked appellate jurisdiction over the case due to the late notice. After Casiano
filed a writ of habeas corpus, the Court of Criminal Appeals granted Casiano leave
to file an out-of-time appeal. We thus consider the merits of his appeal.
Discussion
To prevail on a claim of ineffective assistance of counsel, a 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); Lopez
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Trial counsel in this case
was retained rather than appointed, but the Strickland test applies to retained, as
well as appointed, counsel. See Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim.
App. 2005) (quoting Cuyler v. Sullivan, 446 U.S. 335, 344–45, 100 S. Ct. 1708
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(1980)) (“[W]e see no basis for drawing a distinction between retained and
appointed counsel that would deny equal justice to defendants who must choose
their own lawyers.”). The first prong of Strickland requires a showing that
counsel’s performance fell below an objective standard of reasonableness, in that
counsel made such serious errors that he was not functioning effectively as
counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Lopez, 343 S.W.3d at
142. Thus, the defendant must prove objectively, by a preponderance of the
evidence, that his counsel’s representation fell below professional standards.
Lopez, 343 S.W.3d at 142; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002). “It is not sufficient that the appellant show, with the benefit of hindsight,
that his counsel’s actions or omissions during trial were merely of questionable
competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When
direct evidence is not available, we will assume that counsel’s strategy was
reasonable if any reasonably sound strategy can be imagined. Lopez, 343 S.W.3d
at 143; see also Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).
Analysis
Casiano contends that his trial counsel was ineffective because (1) he did not
pursue his successful objection in response to a State witness’s testimony by
moving for a mistrial; (2) counsel did not challenge this witness’s qualifications,
reliability, and relevance; and (3) counsel moved for a new trial based on improper
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jury deliberations but did not acquire and attach juror affidavits or his co-counsel’s
affidavit to the motion. Casiano further contends that counsel’s individual actions,
when viewed together, demonstrate that counsel’s overall performance was
deficient.
1. Pursuit of a Mistrial
In evaluating Casiano’s challenges, we first note that a trial counsel’s failure
to move for a mistrial is only an act of ineffective assistance if a mistrial should
have been granted. Thomas v. State, 445 S.W.3d 201, 210 (Tex. App.—Houston
[1st Dist.] 2013, pet. ref’d) (citing Weinn v. State, 281 S.W.3d 633, 641 (Tex.
App.—Amarillo 2009), aff’d on other grounds, 326 S.W.3d 189 (Tex. Crim. App.
2010)). In evaluating the propriety of a mistrial, we consider: (1) the severity of
the misconduct; (2) the measures adopted to cure it; and (3) the certainty of
conviction in its absence. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App.
2011). A mistrial is an extreme remedy “for a narrow class of highly prejudicial
and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). Because jurors are presumed to follow a judge’s instructions, an
appropriate instruction generally is sufficient to cure improprieties that occur
during a trial. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
During this trial, the State elicited testimony from Odhiambo about whether
J.A.’s demeanor at her interview was consistent with a child who had been
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sexually abused. The trial judge sustained an objection to this question and
instructed the jury to disregard this testimony sua sponte:
State’s trial counsel: You can’t tell me what she said in the interview,
obviously, because that’s hearsay. How would you describe her demeanor
when you talked to her?
Odhiambo: [J.A.] appeared to be very angry about all of the things that have
happened to her.
State’s trial counsel: Okay. And that was the general impression you got
overall from talking to her?
Odhiambo: Yes.
State’s trial counsel: Okay. And of course, when you talked to her, aside
from being able to observe that she was angry, I’m guessing you found out a
lot about the circumstances of her case, correct?
Odhiambo: Correct.
State’s trial counsel: And from having done 4,000 or 4,000 plus interviews,
the anger that she — that she exhibited during her interview with you, was
that consistent for someone in her situation who had been sexually abused?
Casiano’s trial counsel: Your Honor, can we approach the Bench, please.
The Court: If that’s an objection, that’s sustained.
Odhiambo: Yes.
The Court: The jury is instructed to disregard that answer.
At a follow-up bench conference, the trial court admonished counsel:
. . . She can’t give her opinion about whether she thinks this child was
abused or not abused. . . . So, by you asking her these questions, you’re
implying that she believed her or that[] it’s consistent behavior that she was
angry when she came. You can ask her if she was angry, but you can’t ask
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her the follow-up question: Was that consistent with being abused? . . . You
can’t put that tape in about what she said. . . . you’re getting around that by
asking her what her impression[] was.
We conclude that Casiano’s counsel was not ineffective in not moving for a
mistrial. The response at issue was brief and stated once. See Archie, 340 S.W.3d
at 739–41 (examining the severity of misconduct). The trial judge instructed the
jury to disregard the testimony and conducted a bench conference to avoid any
further improper testimony. See id. (examining measures taken by court to cure
misconduct). The trial judge’s measures were sufficient to cure the improper
testimony. See Gamboa, 296 S.W.3d at 580. Thus, counsel’s decision to refrain
from requesting a mistrial was not ineffective assistance.
2. Expert Witness Challenge
Casiano next contends that his trial counsel was ineffective in failing to
challenge Odhiambo’s qualifications, as well as the reliability and relevance of her
testimony. The State responds that Odhiambo did not proffer any expert
testimony; thus, no challenge was necessary. We agree.
Odhiambo testified that she had conducted thousands of forensic interviews
and had received training to become a forensic interviewer. She testified about her
educational degrees and experience as an interviewer. While Odhiambo
interviewed J.A., Odhiambo recounted, J.A. appeared angry. Although the State
also attempted to elicit testimony about the emotional reactions of abused children
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in general, Casiano’s counsel objected to relevance of this questioning, and the
trial court sustained the objections.
State’s counsel: [I]n the 4,000 interviews that you’ve done, do all kids react
the same?
Odhiambo: No, they don’t.
State’s counsel: What are some of the things that different kids do?
Odhiambo: You have a whole range of emotions.
Casiano’s counsel: Your Honor, I would object to the relevance in this case.
The Court: Sustained.
...
State’s counsel: Have you seen some kids cry?
Odhiambo: Yes, I have.
State’s counsel: Have you seen other kids that are angry?
Casiano’s counsel: Your Honor, same objections.
The Court: You know, you need to approach the Bench. I was wondering,
when you called her, what your purpose of calling her was. . . . You can ask
her if she was angry, but you can’t ask her the follow-up question: Was that
consistent with being abused?
Although Casiano’s counsel did not object to Odhiambo’s qualifications or
reliability, Odhiambo’s testimony was limited to the fact that J.A. was angry
during her interview. She did not proffer any expert opinion. Thus, trial counsel
reasonably could have decided that eliciting Odhiambo’s testimony on her
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qualifications—an issue beyond the scope of her direct testimony—would not have
furthered Casiano’s defense. Counsel’s reasons for his actions do not appear in the
record; given the limited nature of the testimony, counsel’s actions could have
been part of a reasonable trial strategy. See Lopez, 343 S.W.3d at 143.
Accordingly, Casiano has not met his burden to show that counsel’s performance
was deficient. See id. at 142.
3. Jury Misconduct
Casiano next contends that his trial counsel failed to effectively demonstrate
juror misconduct. Texas Rule of Evidence 606(b) prohibits post-verdict testimony
about events or statements that occurred during jury deliberations, the jurors’
mental processes, or how an improper influence affected the jurors. TEX. R. EVID.
606(b); Colyer v. State, 428 S.W.3d 117, 123 (Tex. Crim. App. 2014). It also
prohibits such evidence by affidavit. TEX. R. EVID. 606(b); Colyer, 428 S.W.3d at
124. Rule 606(b), however, does not prohibit all juror testimony. Id. When an
outside influence improperly is brought to bear on a particular juror, a juror may
testify about it. TEX. R. EVID. 606(b); Colyer, 428 S.W.3d at 124–25. An outside
influence includes a discussion “originating from a source outside of the jury room
and other than from the jurors themselves.” Colyer, 428 S.W.3d at 125 (quoting
McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012)). Even if a juror
testifies to an improper outside influence, that juror may not testify about the effect
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that the information had on the jury; instead, we evaluate the effect of the improper
influence on a hypothetical average juror. Id. at 129.
Casiano’s trial counsel provided the trial court with an affidavit, in which
trial counsel averred that his co-counsel had reported a post-verdict conversation
with a juror. The juror reportedly told co-counsel that the jurors had reached their
verdict by considering that: (1) complainant’s video testimony would have
established Casiano’s guilt had counsel not kept the testimony out of evidence, and
(2) Odhiambo’s testimony showed J.A.’s demeanor was consistent with a child
who had been abused, even though the trial court had instructed the jury to
disregard it.
Casiano, however, does not demonstrate that a juror affidavit along these
lines was available to support his motion for new trial or the hearsay statements of
co-counsel. In claims of ineffective assistance of counsel, the record must
affirmatively demonstrate counsel’s deficiency. See Lopez, 343 S.W.3d at 142.
Nothing in the record supports a finding that trial counsel would have been able to
procure a juror affidavit swearing to these facts as presented in the motion for new
trial. See Bone v. State, 77 S.W.3d 828, 834–35 (Tex. Crim. App. 2002) (“If a
reviewing court can speculate about the existence of further mitigating evidence,
then it just as logically might speculate about the existence of further aggravating
evidence. Ineffective assistance of counsel claims are not build on retrospective
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speculation; they must ‘be firmly founded in the record.’”) (quoting Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
In addition, Rule 606(b) prohibits juror testimony or affidavits regarding
jury deliberations, juror mental processes, or how an improper influence affected
jurors. See TEX. R. EVID. 606(b); Colyer, 428 S.W.3d at 123–24. Even if an
outside influence is brought to bear on a juror, a juror is prohibited from testifying
about the effect of the influence on him. See Colyer, 428 S.W.3d at 129. Through
his motion for new trial, counsel sought to examine the juror’s internal
deliberations, not the existence of any improper outside influence. Such evidence,
even if it had been obtained, would not present a basis for a new trial based on
juror misconduct. See id. at 123. Casiano also makes no showing that the jury was
subject to an improper outside influence that would affect a reasonable jury, in
light of the evidence that was presented. Accordingly, we hold that Casiano has
not met his burden to show that his trial counsel was ineffective in moving for a
new trial without attaching a juror affidavit or a co-counsel affidavit. See Lopez,
343 S.W.3d at 142.
4. Totality of the Representation
Finally, Casiano contends that counsel’s individual actions, when viewed
together, demonstrate that counsel’s overall performance was deficient. In Bone v.
State, the Court of Criminal Appeals held that, because counsel’s errors viewed
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individually did not demonstrate a reasonable probability that the result would
have been different, then they did not demonstrate ineffectiveness in its totality. 77
S.W.3d at 836 (“A vague, inarticulate sense that counsel could have provided a
better defense is not a legal basis for finding counsel constitutionally
incompetent.”). Because we conclude that none of Casiano’s claimed individual
errors amounted to ineffective assistance, we likewise hold that Casiano has not
met his burden to show that his trial counsel was ineffective in his overall
performance.
Conclusion
We hold that Casiano has not borne his burden to rebut the presumption that
trial counsel made all significant decisions in the exercise of his reasonable
professional judgment. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Publish. See TEX. R. APP. P. 47.2(b).
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