Joshua Bradley Jeffer v. State ( 2021 )

Opinion filed January 29, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00004-CR
__________
JOSHUA BRADLEY JEFFER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 27225A
MEMORANDUM OPINION
The jury convicted Joshua Bradley Jeffer of two counts of sexual assault
against his then wife, K.J. See TEX. PENAL CODE ANN. § 22.011(a)(1) (West Supp
2020). The jury assessed his punishment at confinement for a period of two years
in the Institutional Division of the Texas Department of Criminal Justice on count
one and confinement for five years in the same division on count two—with the
sentences to run concurrently.
Appellant brings two issues on appeal. In his first issue, Appellant asserts that
he received ineffective assistance of counsel. In his second issue, Appellant
contends that the trial court erred in denying his motion for new trial. We affirm.
Background Facts
The indictment charged Appellant with two counts of sexual assault of K.J.
Appellant was charged in count one with intentionally and knowingly causing the
penetration of the female sexual organ of K.J. with Appellant’s hand, without K.J.’s
consent; the indictment alleged that Appellant compelled K.J. to submit and
participate by the use of physical force and violence. Appellant was charged in count
two with the same conduct as count one, but count two alleged the use of Appellant’s
male sexual organ rather than his hand. Both counts were alleged to have occurred
on or about July 14, 2016. Appellant and K.J. married on February 17, 2016.
However, K.J. had filed for divorce prior to these incidents.
K.J. testified that, on July 14, 2016, she was at home asleep when Appellant
came home and sexually assaulted her. K.J. woke up when Appellant placed his
hand on her face, covering her nose and mouth so that K.J. could not breathe.
Appellant climbed into the bed, wrapped his arm and a leg over K.J. and began
rubbing her body. He tried to put his hand down K.J.’s pants, but she told him “no”
and swatted his arm away.
K.J. attempted to get out of the bed, but Appellant grabbed her by the arm and
pulled her back down to the bed. K.J. felt a sharp, intense pain in her shoulder after
hearing it pop, causing her to cry out. K.J. testified that Appellant subsequently put
his hand and then his penis inside her vagina without her consent as she screamed
“no” while in intense pain because of her injured arm. K.J. additionally testified that
she was on her menstrual cycle at the time and that she had a tampon inserted the
entire time this encounter took place.
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When Appellant finished, K.J. cleaned herself up in the shower and exited the
home. K.J. first called her mother and then called the police. Abilene Police Officer
Robert Collins was one of the officers who responded. After making contact with
K.J., Officer Collins entered the home with Officer Ryan Woodard to locate and
arrest Appellant. Officer Collins testified that Appellant was found naked in the bed
and extremely intoxicated. Appellant was in a deep sleep and required a sternum
chest rub for a couple of minutes in order to wake up.
K.J. was taken to the hospital to be treated for her shoulder injury and was
then transferred to another hospital for an evaluation by a Sexual Assault Nurse
Examiner (SANE). Officer Collins took photos of the bite mark on K.J.’s neck while
at the hospital.
The police officers arrested Appellant and took him to jail. Abilene Police
Detective Roger Romero later interviewed Appellant. While conducting the
interview, Romero testified that he made note of the body language exhibited by
Appellant. Detective Romero testified that, based on Appellant’s mannerisms and
demeanor, Detective Romero “knew there was some deception in [Appellant’s]
answers.”
After he was convicted and sentenced, Appellant filed a motion for new trial
in which he generally asserted that the verdict was contrary to law and also that he
had received ineffective assistance of counsel at trial. The motion for new trial was
overruled by operation of law without being heard by the trial court. See TEX. R.
APP. P. 21.8(c).
Analysis
In his first issue, Appellant alleges ineffective assistance of trial counsel. He
directs this issue toward the manner in which trial counsel handled the questioning
of Detective Romero about Appellant’s credibility. Appellant contends that the case
essentially turned on the relative credibility of K.J. versus Appellant. Appellant
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asserts that trial counsel, without objection, “allowed incessant, impermissible
comments and inadmissible testimony” to be admitted regarding whether Appellant
was telling the truth.
To establish that counsel rendered ineffective assistance at trial, Appellant
must show that counsel’s representation fell below an objective standard of
reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). A
reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Strickland, 466 U.S. at 694. There is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and the defendant must overcome the presumption that the challenged action could
be considered sound trial strategy. Id. at 689.
A claim of ineffective assistance of counsel “must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when
counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily
have an opportunity to explain his actions before an appellate court denounces
counsel’s actions as ineffective. Id. Without this opportunity, an appellate court
should not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Under normal
circumstances, the record on direct appeal will not be sufficient to show that
counsel’s representation was so deficient and so lacking as to overcome the
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presumption that counsel’s conduct was reasonable and professional. Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal
contain sufficient information to permit a reviewing court to fairly evaluate the
merits of such a serious allegation. Id.We note at the outset of our analysis that a hearing was not held on Appellant’s
motion for new trial. Accordingly, the appellate record does not contain an
explanation from trial counsel concerning his actions. With respect to Appellant’s
first issue, he asserts that trial counsel was ineffective in the following respects:
(1) by not objecting when the prosecutor elicited testimony from Detective Romero
about Appellant’s truthfulness during his interview and (2) by not objecting during
closing arguments when the prosecutor called Appellant a liar.
Appellant contends that trial counsel was ineffective by not objecting to
Detective Romero’s testimony that Appellant was being deceptive by his guarded
body language, hesitant tone of voice, and long pauses when answering questions
pertaining to the alleged offense. When the defendant alleges ineffective assistance
of counsel for not objecting to testimony, he must show that the trial court would
have committed error in overruling an objection to the testimony if trial counsel had
made one. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). Evidence
showing that an accused was deceptive during an investigation is relevant and
admissible. Brown v. State, 580 S.W.3d 755, 765 (Tex. App.—Houston [14th Dist.]
2019, pet. ref’d) (citing Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—Houston
[14th Dist.] 1997, pet. dism’d)). “However, an expert is not permitted to give a
direct opinion on the truthfulness of a witness.” Id. (citing Yount v. State, 872
S.W.2d 706, 709–10 (Tex. Crim. App. 1993)).
Based on the record before us, we cannot negate the possibility of a sound
trial strategy as the reason for trial counsel not objecting to the questions asked of
Detective Romero. Objecting to testimony can have the effect of drawing attention
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to the objected-to testimony rather than keeping it from the jury’s consideration. See
Cooper v. State, 788 S.W.2d 612, 618 (Tex. App.—Houston [1st Dist.] 1990, pet.
ref’d). Additionally, counsel may have been concerned that objecting to the
testimony would make it appear that the defense was hiding something from the
jury’s attention. See Pacheco v. State, No. 04-11-00036-CR, 2012 WL 566072, at
*4 (Tex. App.—San Antonio, Feb. 15, 2012, no pet.) (mem. op., not designated for
publication).
Here, trial counsel presented a different perspective of the situation, both on
cross-examination of Detective Romero and during direct examination of Appellant.
Specifically, trial counsel pointed out during his cross-examination of
Detective Romero that Appellant may have been nervous or confused because of the
accusations made against him by K.J. Trial counsel’s line of questioning on cross-
examination eventually resulted in Detective Romero’s admission that he was “not
sure what [Appellant was] thinking.” During his direct examination, Appellant
testified that, during the interview with Detective Romero, he was confused about
why K.J. was making the allegations against him because he had not sexually
assaulted her and that he was being cautious in making his responses to
Detective Romero.
Based on the record before us, we cannot say that counsel’s conduct with
regard to Detective Romero could not be considered sound trial strategy.
Accordingly, Appellant has not met his burden under the first prong of the Strickland
test of demonstrating that counsel’s representation fell below an objective standard
of reasonableness. See Strickland, 466 U.S. at 687–88. Furthermore, the record
does not show a reasonable probability that the result would have been different but
for counsel’s alleged error. See id. at 694. We have noted that trial counsel was able
to show an alternate explanation for Appellant’s conduct during the interview
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through his cross-examination of Detective Romero and trial counsel’s direct
examination of Appellant.
Appellant’s next assertion of ineffective assistance of counsel relates to trial
counsel not objecting when the prosecutor called Appellant a liar during closing
argument. In closing arguments, the prosecutor stated: “But we know [Appellant is]
a liar because he admitted to it.” The prosecutor made this comment in direct
reference to Appellant’s testimony during the guilt/innocence phase.
By taking the stand and testifying, Appellant placed his credibility at issue,
thereby giving the prosecutor the right to question it. See Browne v. State, 483
S.W.3d 183, 196 (Tex. App.—Austin 2015, no pet.). In his trial testimony,
Appellant admitted that he had not told Detective Romero his version of what
occurred. This conflict in Appellant’s account of what occurred was sufficient to
support an inference that Appellant was lying at trial. See id. As such, the
prosecutor’s argument was proper jury argument because it was a reasonable
deduction drawn from the evidence. See Jackson v. State, 17 S.W.3d 664, 673 (Tex.
Crim. App. 2000); Browne, 483 S.W.3d at 196. Accordingly, trial counsel was not
ineffective for not objecting to the prosecutor’s argument that pointed out the
inconsistencies in Appellant’s trial version of the encounter with K.J. We overrule
Appellant’s first issue.
In his second issue, Appellant asserts that the trial court erred in denying
Appellant’s motion for new trial. Appellant’s second issue presents two matters for
our consideration. First, Appellant contends that the trial court erred by not
conducting a hearing on Appellant’s motion for new trial. Appellant also asserts
that the trial court erred by denying his motion for new trial.
A defendant’s right to a hearing on a motion for new trial is not absolute.
Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). As a general rule, a
trial court should hold a hearing if the motion and attached affidavits raise matters
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that are not determinable from the record and that could entitle the accused to relief.
Id. When examining a trial court’s denial of a hearing on a motion for new trial, we
review for an abuse of discretion. Smith v. State, 286 S.W.3d 333, 339–40 (Tex.
Crim. App. 2009). In so doing, we reverse only when the trial court’s decision was
so clearly wrong as to lie outside that zone within which reasonable persons might
disagree. Id.A motion for new trial must be “presented” to the trial court within ten days
of being filed. TEX. R. APP. P. 21.6. The purpose of presentment is to put the trial
court on actual notice that the moving party desires “the judge to take some action,
such as making a ruling or holding a hearing, on his motion for new trial.” See
Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). The movant has
the burden of presentment, which “must be apparent from the record.” Id.; see also
Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).
The matter of presentment of the motion for new trial involves error
preservation. Obella v. State, 532 S.W.3d 405, 407 (Tex. Crim. App. 2017) (citing
Rozell, 176 S.W.3d at 230). The rationale for this requirement is the same as that
which supports preservation of error generally; a trial court should not be reversed
on a matter that was not brought to the trial court’s attention. Carranza, 960 S.W.2d
at 79. Presenting the motion, along with a request for a hearing, is required to let the
trial court know that the defendant wants the trial court to act on the motion and that
the defendant would like a hearing on the motion. Rozell, 176 S.W.3d at 230.
The movant can show presentment with “the judge’s signature or notation on
the motion or proposed order, or an entry on the docket sheet showing presentment
or setting a hearing date.” Gardner, 306 S.W.3d at 305. Although presentment can
be shown in many ways, counsel’s statement that a motion was presented is not
sufficient to show that the trial court had actual notice of the request for a hearing.
Rodriguez v. State, 425 S.W.3d 655, 663 (Tex. App.—Houston [14th Dist.] 2014,
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no pet.); see also Bearnth v. State, 361 S.W.3d 135, 145 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d) (“We cannot conclude that the presentment requirement was
satisfied where the record shows only defense counsel’s statement that the motion
had been presented, but does not indicate that counsel in fact communicated the
request for a hearing in a timely manner to a person capable of acting on it.”).
Likewise, an uncorroborated affidavit by defense counsel in which counsel states
that counsel discussed a motion or request for a hearing with the trial court is
insufficient to show presentment absent other evidence in the record. See Perez v.
State, 429 S.W.3d 639, 644 (Tex. Crim. App. 2014). The record must contain some
evidence that the defendant or his counsel took “steps to obtain a setting or attempted
to get a ruling on a request for a hearing.” Id.Appellant contends that the unsworn “Certificate of Presentment”
(Certificate) filed by Appellant’s counsel shows that his request for a hearing was
timely presented to the trial court. The Certificate states that counsel e-mailed a
proposed order to the trial court in which Appellant requested a hearing. However,
a copy of the proposed order does not appear in the record. The Certificate further
contains a statement that counsel orally informed the trial court that Appellant
desired a hearing on his motion for new trial. Even assuming for the sake of
argument that the conversation counsel refers to took place, the conversation did not
take place on the record, and uncorroborated affidavits by counsel are insufficient to
show presentment. See Perez, 429 S.W.3d at 644. Likewise, the docket sheet does
not contain any notations or settings after the final day of trial. Therefore, we cannot
say that, on this record, Appellant met his burden to present his request for a hearing
on the motion.
Because the record does not establish that Appellant gave the trial court actual
notice of his desire for a hearing on the motion, he failed to preserve his complaint
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for review. As such, we do not reach the question of whether the trial court abused
its discretion when it did not hold a hearing on Appellant’s motion for new trial.
With respect to the trial court’s denial of the motion for rehearing, Appellant
contends that he established that his trial counsel was ineffective because he did not
offer exculpatory evidence during the guilt/innocence phase and that he failed to
present mitigation evidence during punishment. The alleged exculpatory evidence
was a single text message from K.J. to Appellant that stated: “At this point ill [sic]
do anything to get away from you.” The mitigation evidence concerned Appellant’s
good character. Finally, Appellant contends that his trial counsel should have
impeached K.J.’s testimony at punishment with a text message suggesting that she
wanted to move away from Abilene prior to the encounter.
The decision to call a witness is generally a matter of trial strategy. Carter v.
State, 506 S.W.3d 529, 541 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
Furthermore, the manner of conducting cross-examination is inherently a matter of
trial strategy. See Collier v. State, 528 S.W.3d 544, 547 (Tex. App.—Eastland 2016,
pet. ref’d). As we have previously noted, Appellant’s trial counsel has not had an
opportunity to rebut the allegations of deficient conduct on his part. The record does
not establish that trial counsel’s conduct was not the product of a sound trial strategy.
Trial counsel vigorously cross-examined K.J. during the guilt/innocence phase.
With respect to punishment, trial counsel chose to emphasize that Appellant
had no prior criminal record and that he did not have any negative issues for the two
years while out on bond awaiting trial. Trial counsel asserted that Appellant’s lack
of a record and his good conduct while awaiting trial made him a good candidate for
probation. The mitigation evidence that Appellant cites speaks generally to
Appellant’s good character. Trial counsel may have chosen to not use that evidence
in light of the fact that the jury had just determined that Appellant was guilty of both
alleged offenses. On this record, we cannot conclude that the trial court abused its
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discretion by overruling Appellant’s motion for new trial. We overrule Appellant’s
second issue.
This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
January 29, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J.1
Williams, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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