TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00414-CR
Troy Hyatt, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 8038, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of two counts of sexual assault. Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 3, 1983 Tex. Gen. Laws 5311, 5312 amended by Act of May 27, 1991, 72d Leg., R.S., ch. 662, § 1, 1991 Tex. Gen. Laws 2412 (Tex. Penal Code Ann. § 22.011(a)(2)(B), (C), since amended). Punishment was assessed at imprisonment for ten years but, on the jury's recommendation, imposition of sentence was suspended and appellant was placed on community supervision.
The complaining witness was a fourteen-year-old girl who regularly baby-sat for appellant's two children. On the night of October 10, 1993, when driving the complainant home, appellant stopped in a remote area where he caused the girl to participate in cunnilingus and fellatio.
In twelve points of error, appellant asserts that his counsel at trial was ineffective. The State argues that appellant should be foreclosed from raising these points of error because his counsel on appeal was his co-counsel at trial. This argument has been rejected by the Court of Criminal Appeals. Paulsel v. State, 784 S.W.2d 417, 418 (Tex. Crim. App. 1990). The effectiveness of trial counsel issue is properly before us.
To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The same standards are used to judge ineffective assistance claims under both federal and state law. Hernandez, 726 S.W.2d at 56-57.
In points of error one and two, appellant contends his trial counsel was ineffective because he failed to properly object to "prosecutorial misconduct." The alleged misconduct occurred during the testimony of the complainant's mother. The prosecutor asked her if the complainant had asked appellant to stop what he was doing. The witness said that the complainant told her that she had done so. Counsel's objections to these questions as leading and calling for hearsay were sustained, but he did not ask for instructions to disregard the witness's answers. Appellant urges that this line of questioning was improper because consent was not an issue and served only to unfairly prejudice him.
While we agree with appellant that lack of consent was not an element of the offense charged, we believe the State was entitled to adduce evidence on that point as a circumstance of the offense. Moreover, the questions asked, even if they were objectionable, did not rise to the level of prosecutorial misconduct. Counsel's failure to obtain adverse rulings on the objections he did voice did not, in the context of the entire trial, constitute ineffectiveness.
In points of error three, four, five, and six, appellant complains of counsel's failure to object to attacks on defense counsel during the prosecutor's argument at the guilt stage. One of the statements to which appellant refers was, "[A] rape occurred on the 10th of October. Now unfortunately there weren't any witnesses to that, but you saw another rape occur, and it occurred in this courtroom and that little girl was assaulted by those lawyers, and that family was assaulted by those lawyers, but this time there were twelve witnesses because you saw that rape." During the same argument, the prosecutor said, "He [defense counsel] characterizes this young lady and her family in such a way as to just assassinate their character. . . . And where is the evidence of that? There is no evidence of that. The only evidence of that, that's in this courtroom today, that's been here this week, is the poison that has dripped off of his lips in assassinating everyone."
The State argues that the prosecutor's remarks were merely a response to defense counsel's argument, in which he vigorously attacked the credibility of the complainant and her mother, the investigating officer, and the State's expert witness. We believe, however, that referring to defense counsel's argument as "rape" and "poison that has dripped off of his lips" was outside the permissible scope of reply. This does not mean, however, that counsel's failure to object to the prosecutor's remarks constituted ineffectiveness. Counsel may have believed that, as a tactical matter, it was better not to interrupt the prosecutor's argument with repeated objections. In the absence of evidence to the contrary, we must presume that counsel was exercising reasonable professional judgment when he failed to object to the prosecutor's arguments.
Next, in points of error seven and eight, appellant complains of trial counsel's failure to object to what appellant urges were two comments by the prosecutor on his failure to testify. Appellant first refers us to this statement by the prosecutor during argument: "Now where did this stuff come from on [appellant being] a loving and considerate father and husband? Someone that's involved in the community. It came from his [counsel's] lips." Later, referring to persons encountered by appellant and the complainant on the night in question, the prosecutor argued, "And this stuff about people on the motorcycles . . . [a]nd the guys in the car. Well, he [appellant] got out of the car, he's the one that got the license plate numbers. Maybe we should ask him to find them."
Neither remark was manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on appellant's failure to testify. Banks v. State, 643 S.W.2d 129, 134 (Tex. Crim. App. 1982). A prosecutor may refer to the defendant's failure to produce testimony from sources other than himself. Nowlin v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974). Counsel's failure to object to the prosecutor's remarks as comments on appellant's failure to testify was not, on this record, the product of ineffectiveness.
In appellant's last four points of error, he contends his counsel at trial should have objected to the prosecutor's repeated use of the word "rape" in describing the charged offense during argument. Appellant argues that referring to the offense as "rape" rather than as "sexual assault" constituted a misstatement of the law and was an attempt by the prosecutor to poison the minds of the jurors with the unpleasant images associated with the word. But assuming that the prosecutor's use of the word "rape" was subject to objection for the reasons stated, we again find no evidence that counsel's failure to object was not a conscious tactical decision based on reasonable professional judgment.
In reviewing an ineffective assistance claim, a reviewing court must consider counsel's performance as a whole. Moore, 694 S.W.2d at 531. The record before us reflects a vigorous and effective defense in a difficult case. While counsel did not secure an acquittal for his client, the effectiveness of his efforts is reflected, we believe, in the punishment assessed by the jury.
Points of error one through twelve are overruled and the judgment of conviction is affirmed.
Before Chief Justice Carroll, Justices Jones and B. A. Smith
Affirmed
Filed: December 6, 1995
Do Not Publish
defense counsel during the prosecutor's argument at the guilt stage. One of the statements to which appellant refers was, "[A] rape occurred on the 10th of October. Now unfortunately there weren't any witnesses to that, but you saw another rape occur, and it occurred in this courtroom and that little girl was assaulted by those lawyers, and that family was assaulted by those lawyers, but this time there were twelve witnesses because you saw that rape." During the same argument, the prosecutor said, "He [defense counsel] characterizes this young lady and her family in such a way as to just assassinate their character. . . . And where is the evidence of that? There is no evidence of that. The only evidence of that, that's in this courtroom today, that's been here this week, is the poison that has dripped off of his lips in assassinating everyone."
The State argues that the prosecutor's remarks were merely a response to defense counsel's argument, in which he vigorously attacked the credibility of the complainant and her mother, the investigating officer, and the State's expert witness. We believe, however, that referring to defense counsel's argument as "rape" and "poison that has dripped off of his lips" was outside the permissible scope of reply. This does not mean, however, that counsel's failure to object to the prosecutor's remarks constituted ineffectiveness. Counsel may have believed that, as a tactical matter, it was better not to interrupt the prosecutor's argument with repeated objections. In the absence of evidence to the contrary, we must presume that counsel was exercising reasonable professional judgment when he failed to object to the prosecutor's arguments.
Next, in points of error seven and eight, appellant complains of trial counsel's failure to object to what appellant urges were two comments by the prosecutor on his failure to testify. Appellant first refers us to this statement by the prosecutor during argument: "Now where did this stuff come from on [appellant being] a loving and considerate father and husband? Someone that's involved in the community. It came from his [counsel's] lips." Later, referring to persons encountered by appellant and the complainant on the night in question, the prosecutor argued, "And this stuff about people on the motorcycles . . . [a]nd the guys in the car. Well, he [appellant] got out of the car, he's the one that got the license plate numbers. Maybe we should ask him to find them."
Neither remark was manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on appellant's failure to testify. Banks v. State, 643 S.W.2d 129, 134 (Tex. Crim. App. 1982). A prosecutor may refer to the defendant's failure to produce testimony from sources other than himself. Nowlin v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974). Counsel's failure to object to the prosecutor's remarks as comments on appellant's failure to testify was not, on this record, the product of ineffectiveness.
In appellant's last four points of error, he contends his counsel at trial should have objected to the prosecutor's repeated use of the word "rape" in describing the charged offense during argument. Appellant argues that referring to the offense as "rape" rather than as "sexual assault" constituted a misstatement of the law and was an attempt by the prosecutor to poison the minds of the jurors with the unpleasant images associated with the word. But assuming that the prosecutor's use of the word "rape" was subject to objection for the reasons stated, we again find no evidence that counsel's failure to object was not a conscious tactical decision based on reasonable professional judgment.
In reviewing an ineffective assistance claim, a reviewing court must consider counsel's performance as a whole. Moore, 694 S.W.2d at 531. The record before us reflects a vigorous and effective defense in a difficult case. While counsel did not secure an acquittal for his client, the effectiveness of his efforts is reflected, we believe, in the punishment assessed by the jury.
Points of error o