In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-00409-CR
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BEHROOZ DAFTARIAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 85th District Court
Brazos County, Texas
Trial Court Cause No. 27,675-85
O P I N I O N
Appellant was charged with two counts of aggravated sexual assault of a child. Appellant pled not guilty to both counts. A jury found him guilty of both counts and assessed punishment at life in prison.
BACKGROUND
In October 1997, the victim, A.S., began working for appellant at his modeling studio. A.S. was seven years old at the time. Appellant was a family friend and worked with A.S.'s father as a car salesman. Appellant paid A.S. $5 to $10 each time she modeled, and sometimes he gave her clothes. Appellant would pick up A.S. from her home, feed her dinner, and have her "model" for about one hour. A.S. would go to appellant's studio approximately two times a week. In the beginning, A.S.'s older sister went with her, also to model, and later, A.S. went with another girl about her age. Sometimes, appellant would take A.S. to his studio alone. A.S. modeled for appellant for a little over two years.
In November 1999, A.S.'s mother asked her if appellant had ever "done anything" to her. A.S. responded by crying and going to her room. Later, A.S. told her parents and investigators that appellant had pushed his thumb "from where babies come from."
Detective Leslie Hicks investigated the case, and on November 30, 1999, she executed search warrants at appellant's residence and place of business. During the search, Hicks recovered still pictures of children, a video camera, videotapes, towels, blindfolds, baby lotion and baby wipes. Detective Hicks also obtained blood samples from both A.S. and appellant. Appellant was indicted for two counts of aggravated sexual assault of a child.
DISCUSSION
Competency
In his first point of error, appellant complains that "he was denied his due process under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 13 and 19 of the Texas Constitution when the trial court failed to conduct a jury trial to determine the issue of his competency to stand trial."
To be granted a separate jury trial to determine competency, it is necessary that evidence come before the court, from some source, of sufficient force to create in the court's mind reasonable ground for the court to doubt the competency of the accused to stand trial. Bonner v. State, 520 S.W.2d 901,906 (Tex. Crim. App. 1975). The court should conduct a hearing out of the presence of the jury to determine whether or not there is in fact an issue as to the competence of the accused to stand trial. Id at 906. The due process requirement is met once the separate inquiry is made out of the jury's presence. Id. at 906. If an issue as to competency is found to exist, Texas law requires that the court halt proceedings and impanel a separate jury to determine the issue. Id at 906. A defendant lacks competency to stand trial if he does not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as a factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02 § 1A(a) (Vernon Supp. 2002). A trial court's determination that no issue as to competency exists will not be disturbed absent an abuse of discretion. See Bonner, 520 S.W.2d at 906.
The court held a hearing on appellant's motion for "psychiatric examination with regard to his competency to stand trial" prior to trial. Appellant presented his counsel's testimony to support his claim of incompetency. Appellant's trial counsel testified that appellant "does not have the present ability to communicate [to counsel]; or if he does, for some reason, he is not communicating with us." The State responded that appellant's motion for a competency hearing was an attempt to delay the trial. The State presented an affidavit that was taken in relation to a civil lawsuit concerning A.S. and other children alleging sexual assault by appellant. The affidavit was taken during the same time period in which appellant's trial counsel claimed he could not communicate with appellant. In the affidavit, appellant stated that he understood the charges against him, and he stated he did not assault the children.
We find that appellant did not present evidence of sufficient force to create in the court's mind reasonable ground to doubt the competency of appellant to stand trial, and therefore the trial court did not abuse its discretion. See id. Accordingly, appellant's first point of error is overruled. (1)
Mental Health Expert
In his second point of error, appellant claims that the trial court erred by failing to appoint a mental health expert. Appellant also claims that the error violated his "right to due process, under the Fifth and Fourteenth Amendments and article I, sections 13 and 19 of the Texas Constitution."
A defendant can request an examination to determine competency at any time the issue of the defendant's competency to stand trial is raised, and the court may appoint disinterested experts. Tex. Code Crim. Proc. Ann. art. 46.02 § 3(f) (Vernon Supp. 2002) (emphasis added). The trial court determines whether there is some evidence, a quantity more than a scintilla, that rationally may lead to a conclusion of incompetence. See Tex. Code Crim. Proc. Ann. art. 46.02 § 2(a); Allcott v. State, 51 S.W.3d 596, 600 (Tex. Crim. App. 2001). We review the trial court's decision to deny a psychiatric examination for an abuse of discretion. Bigby v. State, 892 S.W.2d 864, 885 (Tex. Crim. App. 1994). As discussed under point of error one, appellant did not present evidence of sufficient force to create in the court's mind a reasonable ground to doubt appellant's competency. The trial court did not abuse its discretion by refusing to appoint mental health expert. Accordingly, we overrule appellant's second point of error.
Ineffective Assistance of Counsel
In his third point of error, appellant claims that he was denied effective assistance of counsel under the Sixth amendment of the United States Constitution and article I, section 10 of the Texas Constitution. Appellant raises nine subpoints to support his claim of ineffective assistance.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) but for the counsel's error, there is a reasonable probability that the result of the proceedings would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812; Gamble, 916 S.W.2d at 93. It is the defendant's burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.
Appellant cites to five occurrences during trial that he claims show his counsel was ineffective. First, appellant claims that his trial counsel was ineffective because he failed to object to the admission of irrelevant, extraneous offenses by the State during its case in chief. Specifically, he complains that counsel failed to object to the admission of evidence regarding a hidden camera, videotapes, and semen evidence, and to testimony about appellant rubbing lotion on the victim. This evidence was part of the offense for which appellant was tried.
The "act of rubbing lotion on the victim" was not an extraneous act. The victim testified that, before appellant pushed his thumb "from where babies come from," he would rub lotion on her.
The videotapes were taken with the hidden camera and showed A.S. and another little girl naked and changing their clothes in appellant's dressing room. The semen evidence came from towels that were recovered from appellant's modeling studio. One towel had a "Saved by the Bell" logo on it, and the other, had an "ALF" logo on it, and they also had blood stains on them. An expert testified that the semen was consistent with appellant's DNA profile. Furthermore, the expert testified that he compared A.S.'s blood with the stains found on the towels, and it was likely that it was her blood on the "Saved by the Bell" towel.
Article 38.37 makes an exception for evidence of extraneous offenses or acts in proceedings in which the victim is under the age of 17. It reads, in pertinent part,
Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts, committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
Tex. Code Crim. Proc. art. 38.37 § 2 (emphasis added). The hidden camera, the video tapes, and the semen and blood evidence were all relevant and thus, admissible under article 38.37, section 2. See Stahle v. State, 970 S.W.2d 682 (Tex. App. --Dallas 1998, pet ref'd.) (evidence of extraneous offenses of improper fondling allegedly committed by defendant against child victim were relevant and admissible on current charges of aggravated assault involving same child). An objection by trial counsel would have been appropriately overruled.
Appellant also claims that his trial counsel was ineffective because (1) he failed to request a limiting instruction at the time any alleged extraneous offenses were admitted; (2) he failed to request a jury instruction in the court's charge requiring the State to prove extraneous offenses beyond a reasonable doubt; (3) he failed to object to the State's opening statement; and (4) he failed to object to the State's "improper" plea for law enforcement.
The record is silent as to why appellant's counsel acted as he did. In such circumstances, our duty is clear--we must presume counsel made all significant decisions in the exercise of reasonable professional judgement. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197 (Tex. App.-- Houston [1st Dist.] 2002, pet. filed). The Court of Criminal Appeals has repeatedly held that, without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective. See Choung Duong Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000); Broussard, 68 S.W.3d at 197.
Appellant claims that his trial counsel was ineffective because he failed to properly prepare witness Charles Russ, a sex offender probation officer. Appellant complains that trial counsel failed to discuss with Russ what his possible testimony would be. Appellant specifically refers to an answer by Russ that the "only sure way they're not going to reoffend is to put them in a coffin" as evidence of appellant's trial counsel's lack of knowledge as to how Russ would testify. The record reflects that the trial counsel conducted a lengthy examination of Russ concerning the sex-offender probation program. The complained-of testimony occurred close to the end of the counsel's questioning.
At the hearing on the motion for new trial, trial counsel stated, through an affidavit, that he subpoenaed Russ and spoke with him the day before Russ testified. Counsel explained that his trial strategy was to have Russ "educate the jury on the rigid safeguards imposed by statute." Russ testified at the hearing on the motion for new trial, and he stated that he spoke to defense attorneys for approximately 7 to 10 minutes, and they told him that they would be asking him about the probation program. Russ also testified that, based on his experiences testifying for other sex-offenders, he felt comfortable, and he had an idea what he would be asked by the attorneys. Based on the counsel's questioning of Russ at trial and the hearing on the motion for new trial, we cannot find that counsel's performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment.
Appellant claims his trial counsel was ineffective because he failed to object to the trial court's failure to impanel a jury to determine appellant's competency. As stated under point of error one, appellant's trial counsel presented evidence of appellant's alleged incompetency to the trial court. The trial court did not find any evidence that appellant was incompetent and ruled against impaneling a separate jury to determine competency. Trial counsel received an adverse ruling as to the incompetency hearing and was not required to make any further objections. Accordingly, trial counsel was not deficient, and appellant fails under the first prong of Strickland.
Appellant complains that trial counsel was, by its own admission, not prepared for trial, and that trial counsel failed to prepare appellant to testify on his own behalf, and therefore, was ineffective. Appellant points to two sentences made by his trial counsel in the hearing on the motion for continuance to support that he was unprepared. However, appellant failed to show that counsel's performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment. Moreover, appellant failed to show how further preparation could have lead to a different result at trial.
Finally, appellant also claims that his trial counsel caused him to involuntarily waive his right to testify by failing to prepare him for trial. At the hearing on the motion for new trial, appellant stated that he wanted to testify at his trial, but he was never given the chance. He further testified that he understood he had the right to take the stand if he chose and that his trial counsel advised him that it would be better if he did not testify. Finally, appellant testified that his trial counsel never pressured him not to testify. Here, the record supports that the trial counsel's advice to appellant against taking the stand was sound trial strategy, and, therefore, it was not ineffective.
After reviewing all of appellant's claims, we find that the trial counsel was not ineffective for the aforementioned reasons, and therefore, we overrule appellant's third point of error.
Legal and Factual Sufficiency
We review legal sufficiency in the light most favorable to the verdict to determine if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In reviewing the evidence on factual sufficiency grounds, all of the evidence as a whole must be reviewed, and not only in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). After reviewing the evidence, we will not deem it factually insufficient unless (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). However, in a factual sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim. App. 1996).
Evidence favorable to the verdict
At trial, Josie Sanchez, the victim's mother testified for the State. She testified that when she asked her daughter if appellant had done anything to her, her daughter started to cry and went to her room.
Detective Leslie Hicks testified for the State. She testified that, pursuant to two search warrants, Hicks searched appellant's residence and place of business. At appellant's studio, Hicks found a hidden camera that was set up behind a "dressing room." The dressing room was just a curtain where the children would change their clothes. Hicks explained that there was a video recorder that was hooked up to a small pin-hole camera between two tall mirrors in the dressing room. Hicks further testified that the pin-hole camera was positioned two feet, five inches above the ground. Other items that Hicks found at appellant's business included, towels, boxes of baby wipes, applications for models, bottles of lotion, and blindfolds. From appellant's residence, Hicks recovered two videotapes that were locked in a safe. Appellant opened the safe for Hicks when Hicks executed the search warrant. In addition, photographs, which were admitted into evidence, were recovered from appellant's residence.
An edited version of the videotapes that were taken from appellant's residence was played for the jury. The video showed A.S. and two other girls changing in the dressing room. The video also showed A.S. and another girl, partially undressed, rubbing lotion on each other. Most of the video footage was of the girls from the neck down, which was consistent with Hicks's testimony about where the pin-hole camera was positioned. The video had some footage that allowed the viewer a clear look at the girls' faces. A.S. was one of the girls in the video.
A.S. testified at trial. She testified that appellant would take pictures of her in a bathing suit. A.S. said she would sometimes go to appellant's studio with her older sister, who also modeled, or with another girl who was about her age. Also, A.S. said she would go to appellant's studio alone. She testified that sometimes appellant had her come out in a towel. A.S. stated that appellant put her on his desk, took off her towel, and he rubbed lotion all over her body and all over himself. She said that appellant blindfolded her and then, with his thumb, he "pushed it from where babies come from." At trial, A.S. used a doll to show the jury where appellant had touched her. Afterwards, A.S. stated that appellant would wipe her off with baby wipes. In addition, A.S. said that she was "kind of" scared of appellant, and she had reoccurring thoughts about the incidents.
Wilson Young, a DNA specialist, testified about blood stains and semen found on the towel recovered from appellant's business. He testified that the semen matched appellant, and there was an 86% chance that the blood stains were from A.S.'s blood.
Evidence unfavorable to the verdict
Josie Sanchez testified that her daughter had been going to appellant's studio for two years before she mentioned anything about his inappropriate touching. Sanchez also testified that appellant was a close family friend and she did not suspect anything for two years. A.S. testified that her parents let her go back to the studio after she had told them about appellant touching her. A.S. also testified that she was not afraid of appellant when she went back to the studio and she and her sister began calling appellant after she had told her parents what had happened.
Detective Hicks testified that the victim's family had a civil suit pending against appellant.
Analysis
Here, A.S. testified for the State, and her testimony was supported by the physical evidence recovered from appellant's home and business. Furthermore, A.S's mother testified that her daughter was upset after being asked about appellant's behavior. Appellant called no witnesses.
After viewing the evidence in the light most favorable to the verdict, we find that any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Furthermore, after viewing the record as a whole, we do not find that (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.
Motion for New Trial
In his sixth point of error, appellant claims that the trial court abused its discretion in denying appellant's motion for new trial because he was denied his right to testify on his own behalf. As discussed under the ineffective assistance of counsel analysis, appellant, by his own admission, was not denied his right to testify. Furthermore, appellant's trial counsel presented affidavits to the court stating that he discussed appellant's right to testify, and he advised him against it. The trial court did not abuse its discretion in denying his motion for new trial. Accordingly we overrule appellant's sixth point of error.
In his seventh point of error, appellant claims that the trial court abused its discretion in denying his motion for new trial because he was denied his right to have punishment assessed by the court. Appellant specifically argues that the court abused its discretion when it gave trial counsel's affidavits more credibility than appellant's live testimony. Appellant testified at the hearing on the motion for new trial that he had asked his trial counsel three times to have the judge assess punishment. Appellant's trial counsel stated in his affidavit that he discussed with appellant his right to have punishment assessed by judge or a jury. Counsel stated that appellant told him he would like to have the jury assess punishment, and appellant never indicated to him that he wanted a judge to do so. Because the trial court was in a position to evaluate the credibility of the witnesses, we view the evidence in the light most favorable to the trial court's ruling. Cantu v. State, 930 S.W.2d 594, 596 (Tex. Crim. App. 1996). We find that the trial court did not abuse its discretion, and accordingly, we overrule appellant's seventh point of error.
We affirm.
Sam Nuchia
Justice
Panel consists of Justices Cohen, Wilson, and Nuchia.
Do not publish. Tex. R. App. 47.
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