Opinion issued October 21, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00891-CR
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mICHAEL lOUIS HALL, Appellant
V.
tHE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1182444
MEMORANDUM OPINION
A jury convicted Michael Louis Hall of the felony offense of aggravated sexual assault of a child and assessed punishment at ten years’ confinement.[1] See Tex. Penal Code Ann § 22.011(a)(2)(A) (Vernon Supp. 2009). On appeal, Hall contends that (1) the trial court erred by overruling his objection that the State’s argument during the punishment phase was outside the scope of the record, and (2) he received ineffective assistance of counsel. We hold that the trial court correctly overruled Hall’s objection, and Hall failed to meet his Strickland burden to demonstrate that his trial counsel performed deficiently. We therefore affirm.
Background
In August 2008, Hall’s eight-year-old daughter, Z.H., alleged that Hall sexually assaulted her during one of her weekend visits to his apartment. Z.H. testified that Hall engaged in numerous sexual acts with her during this visit. After Z.H. found an adult toy on the floor of his apartment, Hall undressed himself, told her to undress, and he put the toy on her crotch and turned it on, causing it to vibrate. She further testified that Hall put his penis against her crotch and attempted vaginal intercourse with her, and that Hall engaged in anal intercourse with her. Hall then told Z.H. to touch his penis, and he touched Z.H.’s breasts and crotch with his hands, sucked on Z.H.’s breasts with his mouth, and licked Z.H.’s crotch with his mouth and tongue.
Misty Hall, Z.H.’s mother and Hall’s estranged wife, testified that Z.H. frequently visited Hall’s apartment after Misty and Hall had separated. Following one visit in August, she observed Z.H. acting differently. A week later, Z.H. told Misty that Hall had undressed in front of her and sexually assaulted her. Misty called Child Protective Services (CPS). Dr. Rena Isaac examined Z.H. She found residual scars on Z.H.’s perianal tissue, consistent with the alleged abuse.
Misty acknowledged that she and Hall did not have a happy marriage. She was upset and angry with Hall for several reasons, including their separation and the fact that Hall took Z.H. to visit a woman with whom he had an affair. Misty told Z.H. that Hall could be dangerous because he had once tried to choke Misty and he had used crack cocaine and other drugs. Misty admitted that Hall introduced her to crack cocaine several months before the incident with Z.H. According to Misty, she stopped using drugs before the incident with Z.H. occurred, but she was angry with Hall for introducing her to the drug.
Hall’s trial counsel elicited testimony from Misty that, sometime after she initially reported the incident with Z.H., Misty revealed to the police that she had once observed Hall watching child pornography while he still lived with her. Upon being asked why she did not bring this fact to anyone’s attention until a month after Z.H.’s initial outcry to CPS and the police, Misty claimed that she did not remember it, and it did not cross her mind at the time. Defense counsel questioned Misty why she would leave her child with someone she thought viewed child pornography. Misty stated that she thought that Hall understood that it was wrong, and he had told her that he was just curious and wanted to see it real quick. She denied she told the police about the child pornography because she hated Hall. Houston Police Department Officer Morrow confirmed that Misty had not made the child pornography allegation in her initial statement. Morrow further testified that he had recovered some sex toys from Hall’s apartment, but none matched the one that Z.H. described.
Hall testified on his own behalf. He denied every aspect of Z.H.’s testimony about the assault. He admitted to marijuana and crack cocaine use in the past, but he denied using either during the weekend of the alleged sexual assault. Hall also denied ever being physically violent with Misty except on one occasion when he took her to a mental hospital. Hall admitted that both he and Misty would look for sexually explicit adult things on the internet, but he denied viewing child pornography. The State presented no evidence that the police had obtained any of Hall’s computers or discovered any child pornography on them. According to Hall, Z.H. was lying about the assault, and Misty manipulated Z.H. into testifying against him because Misty was angry and wanted to take Z.H. away from him.
Discussion
Improper Jury Argument
Hall first contends that the trial court erred by overruling his objection that, during its closing jury argument in the punishment phase, the State argued facts not in evidence. The law provides for a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991); Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Permissible jury argument generally falls into four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) responses to opposing counsel. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Dominguez v. State, 125 S.W.3d 755, 763 (Tex. App. —Houston [1st Dist.] 2003, pet. ref’d). “[P]rosecutors have wide latitude in the language and manner of arguing their side of the case consistent with the evidence.” Holberg v. State, 38 S.W.3d 137, 141 (Tex. Crim. App. 2000). The prosecutor may argue any reasonable deductions from the testimony adduced at trial. Simpkins v. State, 590 S.W.2d 129, 136 (Tex. Crim. App. 1979).
Here, the prosecutor stated:
Because [Z.H.] came in here and told you the truth of what happened to her, what he did to her. Who cares if it was one time? No child should have to go through that. Imagine what she had to be going through this thinking—her dad is doing every sex act imaginable on her.
Hall objected on the ground that the State was arguing facts that were not in evidence, and the trial court overruled the objection. During the guilt-innocence stage of Hall’s trial, the State presented evidence that Hall performed numerous sexual acts on Z.H. Z.H. testified that Hall engaged in seven separate and distinct sexual acts with her during the weekend visit: (1) he placed a sex toy on Z.H’s crotch and turned it on, causing it to vibrate; (2) he attempted vaginal sexual intercourse with Z.H.; (3) he engaged in anal intercourse with Z.H.; (4) he directed Z.H. to touch and manipulate his penis with her hands; (5) he touched and manipulated Z.H.’s breasts and crotch with his hands; (6) he sucked on Z.H.’s breasts with his mouth; and (7) he licked Z.H.’s crotch with his mouth and tongue. In face of the evidence, the prosecutor’s comment, “[i]magine what she had to go through to be going through this thinking—her dad is doing every sex act imaginable on her,” constituted a reasonable deduction from all the evidence produced at trial.
Hall relies on Melton v. State for the proposition that, during jury argument, the State cannot permissibly suggest that the defendant was responsible for additional crimes not alleged in the indictment and not supported by the evidence. See Melton v. State, 713 S.W.2d 107,114 (Tex. Crim. App. 1986). In Melton, the State indicted the defendants for the theft of equipment worth over $200.00. Id. at 107. The prosecutor tried to persuade the jury in the guilt-innocence phase of the trial that the defendants were responsible for more than just the offense alleged in the indictment, and asked the jury to convict the defendants on that basis. Id. at 114. The Court of Criminal Appeals held the prosecutor’s action was outside the record and impermissible. Id.
Hall’s reliance on Melton is misplaced. Here, the evidence in the record suggests that Hall performed numerous sex acts on Z.H., whereas in Melton there was no basis in the record for prosecutor’s insinuation that defendants had committed thefts not alleged in the indictment. See also Simpkims, 590 S.W.2d at 136 (finding that the trial court properly overruled defendant’s objection to prosecutor’s insinuation during jury argument that defendant had lied because the insinuation was a reasonable deduction based on evidence in the record). Because the prosecutor argues a reasonable deduction from evidence in the record, we hold that the trial court correctly overruled Hall’s objection on the grounds of improper jury argument.
Ineffective Assistance of Counsel
Hall also contends that he received ineffective assistance of counsel because his trial counsel: (1) elicited prejudicial evidence of Misty Hall’s accusations that he used drugs, exhibited violent behavior toward her, and viewed child pornography; and (2) failed to request limiting instructions allowing consideration of this prejudicial evidence solely for the question of motive. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of Strickland requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence that his counsel’s representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694; see also Thompson, 9 S.W.3d at 812. In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that the attorney’s performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813. Furthermore, a claim of ineffective assistance must be firmly supported in the record. Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Where the record does not offer an explanation for trial counsel’s actions, we presume that counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
A. Prejudicial Evidence
Hall did not allege ineffective assistance in his motion for new trial so his trial counsel had no opportunity to state reasons for the particular acts and omissions of which Hall complains. His trial counsel, however, discussed his purposes for eliciting the complained-of testimony in response to inquiries by the trial court. Counsel stated that he elicited the testimony to show that Misty hated Hall and thus had a motive to manipulate Z.H. into falsely accusing him.
The Court of Criminal Appeals has held that an “undoubtedly risky” trial strategy that ultimately does not pay off is not necessarily unacceptable or “wholly unjustified.” See Delrio v. State, 840 S.W.2d 443, 446–47 (Tex. Crim. App. 1992) (per curiam); see also Heiman v. State, 923 S.W.2d 622, 626-27 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding that counsel was not ineffective for failing to object to evidence of extraneous offenses because the record reflected a plausible trial strategy to refrain).
Here, counsel risked the possibility that the jury would believe Misty’s allegations of extraneous bad acts, and this belief would negatively affect their view of Hall. The introduction of the allegations, however, also illustrated Misty’s bias against Hall and, if not believed, could cast doubt on her credibility as well as Z.H.’s. Misty admitted under cross-examination by counsel that she did not report Hall’s conduct regarding child pornography at the time of her initial outcry statement to police, but instead reported it a month later. Counsel also asked Misty why she would leave her child with someone who watches child pornography, suggesting that a reasonable parent would not allow further visits if such allegations were true. Further, the State presented no evidence that the police had obtained any of Hall’s computers or attempted to discover whether he stored child pornography on them, and Hall denied viewing, storing, or being interested in child pornography. On these facts, a jury plausibly could infer that Misty had fabricated this allegation and was not a credible witness.
In eliciting the testimony that Hall once tried to choke Misty and used crack cocaine, counsel intended to show Misty’s bias against Hall and manipulation of Z.H. Counsel established that Z.H. found out about Hall’s drug use and alleged violence from Misty. Counsel asked Misty if she told Z.H. about the drug use out of anger. Although she said it was not out of anger, she admitted she told Z.H. about it only after she and Hall had separated. Further, she admitted that Hall’s substance abuse and infidelity probably factored into her hatred of him. Later, she stated that she was angry with Hall for introducing her to crack cocaine. Based on these facts, a jury could infer that Misty hated Hall, and that, because of her hatred, she manipulated Z.H. by telling her about Hall’s bad acts.
Based on the record and the strong presumption that counsel’s performance falls within the wide range of reasonable trial strategy, we hold that Hall has not proved, by a preponderance of the evidence, that counsel’s assistance fell below reasonably professional standards. We conclude appellant has not satisfied the first prong of Strickland.
B. Failure to Obtain Limiting Instructions
Hall also contends that his trial counsel acted deficiently by failing to request limiting instructions restricting the jury’s consideration of the prejudicial testimony about Hall’s extraneous bad acts to Misty’s motive. When the defendant asks for a limiting instruction on extraneous evidence, the trial court generally errs in not giving the instruction. See Ex parte Varelas, 45 S.W.3d 627, 631 (Tex. Crim. App. 2001). However, absent record evidence, a reviewing court cannot simply speculate about trial counsel’s reasons for failing to request an instruction. See id. at 632 (explaining that the “bare record does not reveal the nuances of trial strategy” and that “to hold trial counsel’s actions (or inaction) ineffective in the [direct appeal] would call for speculation and such speculation is beyond the purview of this Court”).
Here, the record is silent regarding his trial counsel's strategic decision not to request a limiting instruction. We cannot speculate as to trial counsel's reasons for failing to request a limiting instruction. Varelas, 45 S.W.3d at 632. Mere surmise is an insufficient evidentiary foundation to hold trial counsel's failure to request a limiting instruction ineffective. Hall has not proved, by a preponderance of the evidence that no plausible professional reason existed for counsel’s failure to seek a limiting instruction.
Because we hold that Hall failed to establish that his trial counsel’s performance fell below an objective standard of reasonableness, we do not address the second prong of Strickland—whether counsel’s deficient performance prejudiced Hall. We note, however, that the State indicted Hall on two counts of sexual assault of a child, and although the jury convicted Hall of one count, it acquitted him of the other, suggesting that trial counsel’s performance did not prejudice Hall, given the physical evidence in the case. See Anaya v. State, 988 S.W.2d 823, 826–27 (Tex. App.—Amarillo 1999, no pet.) (holding that, although counsel’s performance was deficient because counsel elicited and opened door to inadmissible extraneous offense testimony, counsel’s deficient performance did not prejudice defendant since jury acquitted defendant of two of three counts in indictment).
Conclusion
We hold that trial court correctly overruled Hall’s objection that the State argued outside the record during the punishment phase of the trial. We further hold that Hall failed to establish that his trial counsel’s performance constituted ineffective assistance under Strickland. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do not publish. Tex. R. App. P. 47.2(b)
[1] The State indicted Hall in Cause No. 1182444 and Cause No. 1182445 and tried him for both offenses. Under Cause No. 1182444, the State alleged that Hall committed aggravated sexual assault of a child by penetrating a child’s anus with his sexual organ. Under Cause No. 1182445, the State alleged that Hall committed aggravated sexual assault of a child by digitally penetrating the female sexual organ of a child. The jury found Hall guilty of the charge under Cause No. 1182444, but acquitted him of the charge under Cause No. 1182445.