Antoine Newton v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed July 27, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00239-CR
ANTOINE NEWTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1521520
MEMORANDUM OPINION
A jury found appellant Antoine Newton guilty of aggravated sexual assault of
a child under seventeen, and the trial court sentenced him to fifty-six years’
confinement in the Texas Department of Criminal Justice, Institutional Division. He
challenges his conviction in two issues, contending that his trial counsel was
ineffective by: (1) failing to object to victim impact testimony during the guilt-
innocence phase of trial; and (2) failing to call any witnesses or present any
mitigation evidence during the punishment phase. Because the record does not
support appellant’s ineffective assistance claims, we overrule his issues.
We affirm the trial court’s judgment.
Background
On April 8, 2006, fourteen-year-old “Jane”1 was walking home from a
friend’s house when a car stopped in front of her. Appellant and an unknown male
exited the car and approached her. The unknown male hit Jane in the eye with a
closed fist. She fell, hit her head on the ground, and “blacked out.” She awoke the
next morning, naked, in an abandoned apartment. She felt excruciating pain all over,
but her face and vagina hurt the most. She put on her clothes, left the apartment, and
walked home. Her mother immediately took her to the hospital to undergo a sexual
assault exam. The sexual assault nurse collected anal and vaginal swabs from Jane
and secured them in a sexual assault kit. However, the investigation into Jane’s
sexual assault stalled.
In 2016, a new investigator, Detective Emma Rodriguez, took over Jane’s
case file. Detective Rodriguez developed appellant as a suspect through an
“investigative lead.” She contacted Jane, who was then twenty-four years old, and
arranged for her to come in for an interview. After the interview, during which Jane
recounted her recollections of the sexual assault, another officer showed her a photo
array. Jane identified appellant as her assailant. Officers obtained a buccal swab
from appellant. Appellant’s DNA was consistent with the DNA collected from Jane
and contained in Jane’s sexual assault kit. A grand jury indicted appellant for
aggravated sexual assault of a child.
1
We use a pseudonym to protect the minor complainant’s identity. See Tex. R. App. P.
9.8 cmt.; see also Pearson v. State, No. 14-11-00041-CR, 2012 WL 376500, at *1 n.1 (Tex. App.—
Houston [14th Dist.] Aug. 7, 2012, pet. ref’d) (mem. op., not designated for publication).
2
After a two-day trial, a jury convicted appellant of aggravated sexual assault
of a child. Appellant elected to have the trial court determine his punishment, and
after a hearing during which neither the State nor appellant presented any additional
evidence, the trial court sentenced him to fifty-six years’ confinement in the Texas
Department of Criminal Justice, Institutional Division. Appellant timely appealed.
Analysis
A. Standard of Review
Appellant contends his trial counsel was ineffective. We examine claims of
ineffective assistance of counsel under the familiar two-prong standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See Robison v. State, 461 S.W.3d
194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). Under Strickland, the
defendant must prove that his trial counsel’s representation was deficient and that
the deficient performance was so serious that it deprived him of a fair trial.
Strickland, 466 U.S. at 687. Counsel’s representation is deficient if it falls below an
objective standard of reasonableness. Id. at 688. But a deficient performance will
deprive the defendant of a fair trial only if it prejudices the defense. Id. at 691-92.
To demonstrate prejudice, the defendant must show a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694. Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.
Our review of trial counsel’s representation is highly deferential and presumes
that counsel’s actions fell within the wide range of reasonable professional
assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007);
Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (op. on reh’g). If counsel’s reasons for his or her conduct do not appear in the
record and there exists at least the possibility that the conduct could have been
3
grounded in legitimate trial strategy, we defer to counsel’s decisions and deny relief
on an ineffective assistance claim on direct appeal. See Garza, 213 S.W.3d at 348.
If counsel has not had an opportunity to explain the challenged actions, we may not
find deficient performance unless the conduct was “so outrageous that no competent
attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). In the majority of cases, the record on direct appeal is simply
undeveloped and insufficient to permit a reviewing court to fairly evaluate the merits
of an ineffective assistance of counsel claim. See Lopez v. State, 343 S.W.3d 137,
143 (Tex. Crim. App. 2011); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002); Robison, 461 S.W.3d at 203.
B. Victim Impact Testimony During Guilt-Innocence
In his first issue, appellant contends his counsel was ineffective for failing to
object to victim impact testimony elicited during the guilt-innocence phase of trial.
E.g., Love v. State, 199 S.W.3d 447, 456-57 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d) (explaining that victim impact testimony is generally irrelevant at guilt-
innocence phase of trial because it does not tend to make the existence of any facts
of consequence any more or less probable). We disagree that trial counsel was
ineffective for failing to object to the testimony appellant identifies.
Appellant’s complaint involves four portions of victim impact testimony
during guilt-innocence: (1) the complainant’s mother’s testimony regarding the
effects of the sexual assault on the mother;2 (2) the mother’s testimony regarding her
observations of the complainant’s behavior after the sexual assault;3 (3) the
2
The mother testified that it has been difficult to get past the sexual assault of her daughter,
although she is now “kind of able to kind of deal with it because certain life things happen.”
3
The mother explained that talking about the sexual assault was very difficult for the
complainant, stating that the complainant “wanted to just put it in the back of her brain and just,
you know. It was very difficult and sad for her. It was just a difficult thing to relive for her.”
4
complainant’s testimony regarding the changes in her behavior following the sexual
assault;4 and (4) the complainant’s testimony describing why she moved away from
the area where the sexual assault occurred.5
First, contrary to appellant’s assertion, victim impact evidence can be relevant
and admissible during the guilt-innocence phase. A complainant’s change in
behavior is relevant to allegations of sexual assault if either occurrence of the sexual
assault or consent are disputed because the change in behavior makes it more
probable that the alleged assault took place. See, e.g., Gonzalez v. State, 455 S.W.3d
198, 203-04 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (evidence of child’s
post-traumatic stress disorder was admissible in a case in which the source of the
child’s trauma—either sexual assault by the defendant or physical abuse by the
mother—was disputed); Yatalese v. State, 991 S.W.2d 509, 511 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d) (mother’s testimony about her child’s
transformation from a “normal, regular little girl” to having a “very bad attitude”
and “a lot of anger” after the alleged sexual assault was admissible in a case in which
the defendant disputed that the assault occurred); see also Longoria v. State, 148
S.W.3d 657, 659-60 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (in an
aggravated sexual assault case, “testimony regarding the girls’ behavior and long-
term prognosis would have a tendency to make more or less probable a fact of
4
The complainant described the changes in her behavior immediately after the sexual
assault took place: “I got very angry. I got very -- just being honest -- pissed off with a lot of
things. I started being a very, very disobedient child. I was mad at everybody. There was a time
where they asked if I wanted to talk to somebody and I told them no.”
5
The complainant testified that she left the area after the assault occurred:
After the incident, I didn’t want to be anywhere near the area, so my other aunt who
is no longer with us, agreed to let me stay with her. . . . I was scared. I was terrified
of the area. I didn’t feel comfortable at all. I didn’t want to go down the street. I
didn’t want to leave the house. It got to a point where I didn’t want to go to school,
because I didn’t want to have to leave the house.
5
consequence at the guilt stage; that is, whether appellant committed the crimes at
all.”). Thus, victim impact testimony may be admissible during the guilt-innocence
phase if the testimony would tend to make more or less probable a fact of
consequence at the guilt stage. Longoria, 148 S.W.3d at 660.
The State argues that this testimony was admissible to rebut appellant’s
defensive theory that no aggravated sexual assault occurred. E.g., Gonzalez, 455
S.W.3d at 203; Cueva v. State, 339 S.W.3d 873, 880-81 (Tex. App.—Corpus Christi
2011, pet. ref’d) (victim impact testimony admissible during guilt innocence when
defendant claimed victim and her mother fabricated the incident); Yatalese, 991
S.W.2d at 511. During opening argument, appellant’s counsel argued as follows:
“There was no aggravated assault. There’s no evidence of that. There’s a version
of events that someone is telling you and we’re going to probe that version of events
and we’re going to test it.” Appellant’s counsel also suggested that this case bore
similarities to the “American Classic, To Kill a Mockingbird, by Harper Lee . . .
absent the racial undertones. . . .”6 Appellant’s counsel argued that the complainant
“may have made some mistakes back then and presented herself to be something
that she wasn’t quite.”
We agree with the State that, to rebut appellant’s defensive theory, this
testimony may be admissible during the guilt-innocence phase. Cf. Gonzalez, 455
S.W.3d at 203; Longoria, 148 S.W.3d at 659-60; Cueva, 339 S.W.3d at 880-81;
Yatalese, 991 S.W.2d at 511; see also Brown v. State, 692 S.W.2d 146, 150 (Tex.
App.—Houston [1st Dist.] 1985, pet. denied) (“[O]ur courts have long recognized
that subsequent emotional distress and shock may be properly considered in
6
In that novel, a father beat his daughter when he discovered that she made sexual advances
to a black man. The father and daughter, both white, then falsely accused the black man of raping
the daughter. See HARPER LEE, TO KILL A MOCKINGBIRD (1960), plot summary available at:
https://en.wikipedia.org/wiki/To_Kill_a_Mockingbird.
6
determining whether sexual intercourse occurred as a result of threats or force.”).
Thus, appellant has not demonstrated that counsel’s failure to object fell below
objective standards of professional norms. See Longoria, 148 S.W.3d at 659-60; see
also Mays v. State, No. 14-18-00702-CR, 2019 WL 5704292, at *3 (Tex. App.—
Houston [14th Dist.] Nov. 5, 2019, pet. ref’d) (mem. op., not designated for
publication).
Moreover, our record is silent regarding trial counsel’s reasoning. Appellant
did not file a motion for new trial asserting this complaint, nor did a hearing occur
at which counsel was afforded an opportunity to explain the reasoning behind the
decision not to object. Our record is thus insufficient to overcome the presumption
that counsel’s actions were part of a reasonable strategic plan. See Tong v. State, 25
S.W.3d 707, 714 (Tex. Crim. App. 2000) (no ineffective assistance on direct appeal
when counsel failed to object to improper victim impact testimony when record was
silent concerning counsel’s motivations); see also Mays, 2019 WL 5704292, at *3
(same); Brown v. State, No. 14-15-00795-CR, 2017 WL 225 8251, at *13 (Tex.
App.—Houston [14th Dist.] May 23, 2017, no pet.) (mem. op., not designated for
publication) (same); Montez v. State, No. 14-05-00182-CR, 2006 WL 916437, at *6-
7 (Tex. App.—Houston [14th Dist.] Apr. 6, 2006, pet. ref’d) (mem. op., not
designated for publication) (same).
In sum, appellant has not demonstrated that his counsel’s failure to object to
the identified testimony amounted to ineffective assistance of counsel. We overrule
his first issue.
C. Failure to Offer Mitigating Evidence During Punishment
In his second issue, appellant contends that his trial counsel was ineffective
for failing to present any mitigating evidence or witnesses during the punishment
phase. When the claim of ineffective assistance is based on counsel’s failure to call
7
a witness, the appellant must show that (1) such witnesses were available to testify,
and (2) appellant would have benefitted from their testimony. Ex parte White, 160
S.W.3d 46, 52 (Tex. Crim. App. 2004).
Appellant has not identified any mitigating evidence that his trial counsel
should have presented or any witnesses that would have been available to testify.
Appellant has not met the first element and therefore cannot meet the second.
Instead, appellant points to the following argument his trial counsel made at the
punishment hearing: “I will say in his defense he has children. He has two girls and
a boy. Their mother has recently passed away tragically, unexpectedly.” Appellant
contends that this argument shows that trial counsel was ineffective because he “was
obviously aware of the presence of the children and the passing of his children’s
mother . . . [but] he called no witnesses to expand on the fatherly relationship, the
passing of the children’s mother, and what he has done to be there for his children
to handle and deal with naturally difficult emotions associated with the passing of
their mother.”
Merely suggesting that there may have been mitigating evidence is not
sufficient. Without establishing the existence of any favorable evidence that
available witnesses would have provided, appellant cannot demonstrate ineffective
assistance based on a failure to present mitigating evidence. See Bone, 77 S.W.3d
at 834-35 (trial counsel was not ineffective for failing to produce more mitigating
evidence when the record did not show that other mitigating evidence existed);
Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (when appellant did
not explain what mitigating evidence trial counsel should have proffered, court
“cannot possibly find that a failure to proffer such evidence constituted ineffective
assistance”); Robinson v. State, 514 S.W.3d 816, 824 (Tex. App.—Houston [1st
Dist.] 2017, pet. ref’d) (“A defendant complaining about trial counsel’s failure to
8
call witnesses must show the witnesses were available and that he would have
benefitted from their testimony.” (quotation omitted)); see also Silva v. State, No.
14-19-00720-CR, 2021 WL 970560, at *4-5 (Tex. App.—Houston [14th Dist.] Mar.
16, 2021, no pet.) (mem. op., not designated for publication) (“Here, the record does
not show that Villarreal was available to testify at Appellant’s punishment hearing.
The record is also silent as to counsel’s reasons for failing to call Villarreal at the
punishment hearing. Therefore, Appellant’s argument fails to rebut the strong
presumption in favor of effectiveness of counsel.”).
Appellant compares this case to Milburn v. State, 15 S.W.3d 267 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d). In Milburn, the defendant presented evidence
at a hearing on a motion for new trial. See id. at 269. The parties stipulated that
twenty of the defendant’s relatives and friends would have testified that they had
known the defendant for a long time and that the jury should have considered the
minimum punishment. See id. The witnesses would have testified at trial if they
had been requested to do so, but trial counsel never contacted them. See id. Milburn
is clearly distinguishable. Appellant did not file a motion for new trial, and the
record does not reveal the existence of any available witnesses or the nature of any
mitigating evidence.
In sum, appellant has not demonstrated that any mitigating, favorable
evidence existed or that any witnesses ready and willing to provide mitigating
testimony were available. Thus, we conclude appellant has not rebutted the strong
presumption that his counsel was effective. We overrule appellant’s second issue.
9
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Hassan, and Wilson.
Do not publish. Tex. R. App. P. 47.2(b).
10