Opinion issued December 3, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00084-CR
NO. 01-09-00085-CR
__________
THOMAS ELTON MCDONNEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1131352 & 1131353
MEMORANDUM OPINION
A jury found appellant, Thomas Elton McDonnel, guilty of the offenses of aggravated sexual assault of a child and indecency with a child and assessed his punishment at confinement for life and a $10,000 fine and confinement for twenty years and a $10,000 fine, respectively. In two issues, appellant contends that he received ineffective assistance of counsel and that the State “erred during final argument by addressing jurors personally and commenting on appellant’s failure to testify.”
We affirm. Factual BackgroundThe mother of the complainant testified that she had had a long-term affair with appellant, who was a family friend and possibly the father of the complainant, who was thirteen years old at the time of trial. After she divorced her husband, the complainant’s mother began allowing the complainant to visit appellant at his home, and appellant and the complainant began having frequent visits and frequent communications. At some point after these visits, the complainant’s behavior changed and the complainant eventually stopped seeking contact with appellant. The complainant’s mother became worried about the complainant’s behavior, and she confided to the complainant that she had been sexually assaulted as a child. The complainant then admitted to her mother that appellant had been touching “his private” to the complainant’s “private,” and the complainant began crying. Her mother then called law enforcement authorities and took the complainant to the Children’s Assessment Center, where the complainant was interviewed.
The complainant testified that when she was eleven-years old, appellant babysat her, gave her a “total bath,” and touched every part of her body. Although she did not tell anyone about the incident, she thought the contact was inappropriate. Later on, after the complainant started visiting appellant at his house, appellant began touching her “private parts.” She explained that appellant would stick his penis into her “private” and then go into the bathroom and wipe himself off. Appellant told the complainant that she was not big enough and that “he needed to stretch” her. Appellant would also put his mouth on her chest and on her private. When the complainant refused to perform oral sex on appellant, appellant would make the complainant touch his penis. Eventually, the complainant began making excuses to avoid going to appellant’s house, and she subsequently told her mother that appellant was sexually assaulting her.
Ineffective Assistance
In his first issue, appellant argues that he received ineffective assistance of counsel because his trial counsel “failed to investigate the case to learn of allegations of appellant’s sexual proclivity to young girls” and “elicited evidence of an extraneous offense” and of appellant’s “deviant sexual desire.”
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). Strickland generally requires a two-step analysis in which an appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Id. at 687–94, 104 S. Ct. 2064–2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813. The record must affirmatively support the alleged ineffectiveness. Id.
Appellant’s ineffective assistance complaint primarily arises from the following exchange when his trial counsel inquired into whether the complainant had told one of her friend’s about the sexual assaults:
[Trial counsel]: Did you tell the interviewer that you had told [your friend] about this situation at the time?
[The complainant]: I did not tell [my friend] about the situation. I told her—she had come over to my house one day and [appellant] was over there and there was a chair and we had sat in his lap and he had gotten hard and told me later on that he was hard while she was sitting in his lap. I went to school and I said, There is something you need to know. He got hard when we were—when you were sitting on his lap.
[Trial counsel]: Okay. So that’s the only thing you told [your friend]. You did not tell her anything else?
[The complainant]: Yes. That’s the only thing I told her.
Appellant asserts that, through these two questions, his trial counsel “introduced evidence of extraneous sexual misconduct and pedophelia.” Appellant further asserts that either his trial counsel “should have prepared enough to know that allegation that appellant ‘got hard,’” and appellant complains that there is “no plausible trial strategy to justify eliciting” this evidence.
At the beginning of her cross-examination of the complainant, appellant’s trial counsel’s stated her clear intent to limit the cross-examination to prior inconsistent statements to avoid opening the door to extraneous offenses. The record reflects that, in asking the above questions, appellant’s trial counsel was inquiring into possible inconsistencies about to whom the complainant had reported appellant’s sexual assaults. The complainant’s response was unsolicited and non-responsive to the question posed by appellant’s trial counsel.
Regarding his assertion that his trial counsel failed to properly investigate the case and failed to interview potential witnesses, appellant does not refer us to any evidence in the record. Appellant also does not specifically identify any evidence of other steps that appellant’s trial counsel failed to take in conducting her investigation of the case that would have resulted in counsel’s learning of the complainant’s allegations that appellant had become “hard” when she and one of her friends had sat upon appellant’s lap.
Accordingly, we hold that appellant has not demonstrated that his trial counsel’s actions fell below an objective standard of reasonableness and that appellant has not satisfied Strickland’s first prong.
We overrule appellant’s first issue.
Improper Jury Argument
In his second issue, appellant argues that the “State erred” in its final argument because it addressed jurors personally and commented on his “failure to testify.”
Appellant first complains that the State asked the jurors “to place themselves in the role of the father to the complainant” when it made the following argument:
[State]: Remember when [the complainant] talked to us about the bathroom incident, it could be construed either way, but logic tells us—remember I told you in opening statement that it was him testing the waters . . . A man who had just come into basically her life as the father, . . . does it even make sense that he’s going to be washing her body at the age of 11?
Fathers, have ya’ll ever watched your daughters at the age of 11? Those of us who have daughters at the age of 11? Those of us who have children—
[Appellant’s counsel]: Objection, Your Honor, addressing the individuals.
[Trial Court]: Sustained. You may continue.
Appellant also complains that the State improperly commented on his “silence at trial” when it made the following argument:
[State]: . . . But we all know that this occurs behind closed doors . . . . 65 people out there, 24 people raised their hand and said, it happened to me or a family member. With all due respect to [my co-counsel], some of ya’ll did not learn about sexual assault this week from the defendant and I know that.
[Appellant’s counsel]: Objection. Again he’s addressing individual jurors.
[Trial court]: I don’t think that’s the case.
Proper jury argument is limited to (1) summation of the evidence presented at trial, (2) reasonable deductions from that evidence, (3) answers to opposing counsel’s argument, and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Swarb v. State, 125 S.W.3d 672, 685 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). To determine whether a party’s argument properly falls within one of these categories, we must consider the argument in light of the entire record. Swarb, 125 S.W.3d at 685.
To preserve error regarding allegedly improper jury argument, a party must both object and pursue the objection to an adverse ruling. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In regard to appellant’s first complaint, the State concedes that the comment to the individual jurors does not fall within one of the four permissible categories of jury argument. However, as the State notes, appellant objected to the comment, and the trial court sustained the objection. Appellant did not request an instruction to disregard or move for a mistrial, and he thus failed to preserve this complaint for our review. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1996) (holding that to preserve error for appeal, defendant must obtain an adverse ruling by objecting, requesting an instruction to disregard, or moving for a mistrial). This is because “[i]t is well settled that when appellant has been given all the relief he requested at trial, there is nothing to complain of on appeal.” Id.
In regard to appellant’s second complaint, “[i]t is settled law that neither the trial judge nor the prosecution may comment on the defendant’s failure to testify, and that any such comment violates the Fifth Amendment privilege against self-incrimination.” Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). A statement constitutes a comment on a defendant’s failure to testify if “the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Busby v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008). Any challenged argument should be looked at in its full context based on what it would necessarily and naturally mean to a jury. Cruz, 225 S.W.3d at 549.
In reviewing the full record, it is clear that the prosecutor’s comment, made in the State’s rebuttal argument, that he knew that some of the jurors had “not learn[ed] about sexual assault this week from the defendant,” addressed a previous comment made by another prosecutor, in the State’s opening argument, that the jurors had not been familiar with the offense of aggravated sexual assault before the trial. Specifically, the first prosecutor, in the State’s opening argument, stated,
. . . .Monday the 12 of you walked into this courtroom when we started picking this jury, and, hopefully, for many of you, you probably didn’t have a picture of what child sexual abuse is. . . .
But, quite honestly, the 12 of you didn’t have a true picture of what child sexual abuse was. Although you may not have thought it was the creepy man in the trench coat luring kids into the van, you probably didn’t have a true picture. I hope for your sake that you did not.
The second prosecutor, in the State’s rebuttal argument, made the challenged comments as a follow-up and to correct the first prosecutor’s prior comment suggesting that all of the jurors had been unfamiliar with the criminal offense of sexual assault prior to their experience as jurors. Accordingly, we hold that the State did not improperly comment on the defendant’s failure to testify.
We overrule appellant’s second issue.
Conclusion
We affirm the judgments of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. See Tex. R. App. P. 47.2(b).