Joseph David Scarborough v. State ( 2020 )

AFFIRMED and Opinion Filed March 9, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01311-CR
JOSEPH DAVID SCARBOROUGH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80169-2018
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Whitehill
Appellant was convicted of continuous sexual abuse of a child and sentenced
to forty-seven years in prison. In two issues, he argues that his trial counsel rendered
ineffective assistance and the trial court abused its discretion by allowing more than
one outcry witness.
We conclude the record does not demonstrate that counsel’s performance fell
below an objective standard of reasonableness. We further conclude that the court
did not abuse its discretion by allowing two outcry witnesses to testify about
different acts of abuse, and even if the evidence was erroneously admitted, it was
harmless. We thus affirm the trial court’s judgment.
I. BACKGROUND
Appellant told his cousin, Amye Cox, that he molested his stepson, JG, when
JG was nine years old and that it continued for a year.
Cox later asked JG if appellant had molested him when he was a child.
Specifically, Cox asked JG if appellant (i) made JG touch him; (ii) made JG give
him oral sex; and if (iii) appellant’s penis “ever went inside” JG. JG responded “yes”
to all three questions and said that it happened every couple of weeks for a year.
When confronted by Cox and other family members, appellant admitted he
abused JG for four to five months. Cox’s sister contacted the authorities.
McKenzie McIntosh forensically interviewed JG at the Collin County
Children’s Advocacy Center and testified generally that JG reported appellant’s
abuse and that he provided details. When the State asked McIntosh whether JG told
her that appellant’s hand touched JG’s genitals and that appellant’s genitals touched
JG’s buttocks, McIntosh replied, “Yes.”
Corporal Danny Stasik with the Collin County Sheriff’s Office testified that
he interviewed appellant and appellant admitted that he sexually abused JG
“multiple times,” including: (i) contacting JG’s anus and mouth with his male sexual
organ, (ii) contacting JG’s genitals with his hand, (iii) contacting JG’s buttocks with
his genitals, and (iv) contacting JG’s hand with his genitals. Appellant admitted
that each of these offenses happened over several months when JG was under
fourteen.
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JG was eighteen at the time of trial and said that he was eight or nine years
old the first time something sexual happened with his stepfather. JG testified in
detail about the abuse.
Appellant was found guilty of continuous sexual abuse of a child and was
sentenced to forty-seven years in prison.
II. ISSUES
A. First Issue: Does the record demonstrate ineffective assistance of
counsel?
No, because there was no record evidence regarding trial counsel’s strategy.
Appellant’s first issue argues that trial counsel rendered ineffective assistance.
Specifically, he contends that his trial lawyer erred by failing to object when the
State asked appellant’s aunt if she “believed appellant would sexually assault
another child.”1
To prevail on an ineffective assistance of counsel claim, an appellant must
show two elements: deficient performance and prejudice. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Strickland v. Washington, 466
U.S. 668 (1984). The claim must be firmly founded in the record. Goodspeed, 187
1
The challenged testimony requires some context. Aunt Nelda testified that she asked appellant if he was
afraid that he was going to molest his own son, and appellant said “maybe.” Then, the following
testimony about which appellant complains:
Q. . . . [W]hat’s going through your mind when the defendant told you maybe, maybe he might
[do] the same thing to [his son]?
A. I honestly thought he probably would have. That was why he was asking, he had told Amye that
particular time, I honestly thought that.
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S.W.3d at 392. As a result, direct appeal is usually an inadequate vehicle for raising
such a claim because the record is generally undeveloped. Id. This is particularly
true with respect to the deficient performance element because (i) we review
counsel’s conduct with great deference, without hindsight’s distorting effects, and
(ii) counsel’s reasons for failing to do something often do not appear in the record.
See id.
Trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Id. Absent such an opportunity, an
appellate court should not find deficient performance unless the conduct was so
outrageous that no competent attorney would have engaged in it. Id. “An appellant’s
failure to satisfy one prong of the Strickland test negates a court’s need to consider
the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
Because the reasonableness of counsel’s choices often involves facts that do
not appear in the appellate record, an application for writ of habeas corpus is
generally the more appropriate vehicle to raise ineffective assistance of counsel. See
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Here, there was no factual development of appellant’s ineffective assistance
of counsel claim in the trial court. Although appellant filed a new trial motion, that
motion did not raise ineffective assistance as a ground, and it was overruled by
operation of law.
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Assuming for the sake of argument that the challenged testimony was
inadmissible, the record is silent as to why counsel did not object. We assume
counsel had a strategy if any reasonable strategic motivation can be imagined. See
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Deciding not to object
to inadmissible evidence can be a plausible trial strategy. See McKinny v. State, 76
S.W.3d 463, 473-74 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Reviewing the totality of the representation and the circumstances of the case,
we can imagine some strategic motivation for not objecting to the testimony. Thus,
appellant fails to demonstrate that counsel’s conduct was so outrageous that no
competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392–
93.
Accordingly, we resolve appellant’s first issue against him.
B. Second Issue: Did the trial court abuse its discretion by allowing two
outcry witnesses?
No, because the witnesses testified about separate events. And any error was
harmless because JG gave substantively similar testimony.
The trial court held an outcry hearing and ruled that McIntosh, the forensic
interviewer, could testify regarding two issues: (i) appellant touching JG’s buttocks,
and (ii) appellant touching JG’s genitals. McIntosh testified to those two acts.
Appellant’s second issue argues that the trial court abused its discretion in
allowing the State to present two outcry witnesses. According to appellant, Cox was
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the first person JG told about the abuse, so McIntosh (the forensic examiner) should
not also have been allowed to testify.2
The “outcry” statute excludes from hearsay a child’s statements describing the
alleged sexual offense that the child made to the first adult other than the defendant.
See TEX. CODE CRIM. PROC. art. 38.072, § 2; Sanchez v. State, 354 S.W.3d 476, 484
(Tex. Crim. App. 2011). There can be only one outcry witness per event of sexual
abuse. See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).
The trial court has broad discretion to determine which of several witnesses is
an outcry witness to a particular event, and unless it clearly abuses its discretion, we
will not disturb its decision. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.
App. 1990). A trial court does not abuse its discretion unless its decision falls
outside the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d
540, 542 (Tex. Crim. App. 2000).
Appellant’s argument rests on the premise that McIntosh’s testimony
concerned the same incidents that Cox had already testified about (appellant
touching JG’s buttocks and genitals). We disagree.
The indictment alleged that appellant committed two or more acts of sexual
abuse during a period of thirty or more days in duration, including two instances of
2
Appellant now argues that Cox covered the same outcry as McIntosh when she defined “molested”
for JG and JG agreed that he had been molested. But this complaint was not raised in the court below. See
Armijo v. State, No. 05-18-00489-CR, 2019 WL 6888518, at *5 (Tex. App.—Dallas Dec.18, 2019, no pet.)
(error not preserved when arguments on appeal do not comport with trial objections). Instead, appellant
argued that the Cox outcry concerning anal penetration necessarily included touching the buttocks.
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aggravated sexual assault (appellant’s penis contacted JG’s anus and appellant’s
penis contacted JG’s mouth) and three instances of indecency with a child by sexual
contact (appellant’s hand touching JG’s penis, appellant causing JG’s hand to touch
appellant’s penis, and appellant causing JG’s buttocks to touch appellant’s penis).
Thus, there were five separate instances of alleged abuse.
Cox testified that when she asked JG about the abuse, he did not know what
the word “molest” meant. Cox defined the word as “where an adult man or an adult
woman touches you in your private area where they’re not supposed to.” Then, Cox
asked JG whether appellant had done that to him, and JG responded, “Yes, ma’am.”
JG then responded “yes” to three more questions: whether appellant made him touch
appellant’s private part, whether appellant made JG give him a “blow job,” and
whether appellant ever put his private part into JG. When defense counsel asked
Cox if she asked JG whether appellant had ever touched his genitals, Cox said, “No.”
McIntosh testified as follows:
Q: [During the interview, did [JG] outcry to the defendant’s hand
touching [JG’s] - - his genitals?
A: Yes
Q: And did he outcry to the defendant’s genitals touching [JG’s]
buttocks?
A: Yes
Q: And he– those weren’t the only two things he outcried to; is that
right?
A: There was more.
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McIntosh did not describe the additional outcries.
McIntosh’s testimony was limited to two types of abuse that were not covered
by Cox’s testimony. Accordingly, the trial court did not abuse its discretion by
allowing McIntosh to testify about the outcry concerning those incidents.
Moreover, even if the testimony was erroneously admitted, JG provided
substantially similar testimony concerning the same incidents McIntosh described,
but in greater detail. Therefore, we conclude that there is a fair assurance that
McIntosh’s testimony did not influence the jury or had but a slight effect. See
Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.—Dallas 2005, pet. ref’d)
(substantially similar inadmissible hearsay harmless where victim provided explicit
and detailed testimony).
Thus, we resolve appellant’s second issue against him.
III. CONCLUSION
Having resolved appellant’s issues against him, we affirm the trial court’s
judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
1801311F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSEPH DAVID SCARBOROUGH, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-80169-
No. 05-18-01311-CR V. 2018.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Whitehill. Justices Myers and
Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered March 9, 2020
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