Mitchell Woodbury, Jr. v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00202-CR

Mitchell Woodbury, Jr., Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 48,292, HONORABLE RICK MORRIS, JUDGE PRESIDING

Appellant Mitchell Woodbury pleaded guilty and judicially confessed to the felony offense of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B) (West 1994 & Supp. 1999). The district court adjudged him guilty and assessed punishment at imprisonment for forty years. On appeal, appellant asserts that he received ineffective assistance of counsel during the punishment stage of trial in violation of the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment with intentionally and knowingly causing his sexual organ to contact and penetrate the female sexual organ of a child younger than 14 years of age on or about July 22, 1997. On February 8, 1999, appellant waived his right to a trial by jury and pleaded guilty to aggravated sexual assault of a child. Appellant's judicial confession was admitted into evidence. The district court deferred a finding of guilt and scheduled a punishment hearing for February 18, 1999.

Although appellant received both oral and written notice of the punishment hearing, he failed to appear when the hearing commenced on February 18. The State moved to proceed in appellant's absence pursuant to article 33.03 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 33.03 (West 1989). Appellant's attorney stated that he was not prepared to proceed without appellant present but could not provide the court with any assurance that appellant would appear if the hearing was rescheduled. The trial court granted the State's request to proceed.

Five witnesses testified on behalf of the State, including a bail bondsman, two minors other than the alleged victim and the minors' guardians. Appellant's attorney did not cross-examine any of the State's witnesses or object to any of their testimony, nor did he present any evidence or argument. At the close of the evidence, the court found appellant guilty of aggravated sexual assault of a child and assessed punishment at imprisonment for forty years.⁽¹⁾

DISCUSSION

Appellant complains that his trial counsel failed to render effective assistance in six respects: (1) counsel failed to object to the testimony of the two minors and their guardians based upon relevancy to the punishment to be assessed for the offense of aggravated sexual assault of a child; (2) counsel failed to object to the testimony of those witnesses based upon Texas Rule of Evidence 403; (3) counsel failed to ask a single question of any of the State's witnesses on cross-examination; (4) counsel failed to cross-examine the second minor or object to the admission of her witness statement; (5) counsel made no final argument; and (6) counsel permitted the State to argue outside the record without objection. Appellant contends that his attorney's performance fell below the standard of effective assistance of counsel at the punishment phase of a non-capital trial as set out in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). The Duffy standard asks "first, whether counsel was reasonably likely to render effective assistance, and second, whether counsel reasonably rendered effective assistance." Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992).

The court of criminal appeals recently reexamined the proper standard to be applied to claims of ineffective assistance at the punishment phase in Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). The court expressly overruled the application of the Duffy standard to review these complaints and determined that the proper test to be applied is that enumerated in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 771.

Accordingly, we review appellant's contention that he was denied the effective assistance of counsel during the punishment phase of his non-capital trial pursuant to the two-prong Strickland test. To show ineffective assistance of counsel, appellant must show that: (1) counsel's performance was deficient, falling below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. See Strickland, 466 U.S. at 687; Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 115, 118 (Tex. App.--Austin 1994, pet. ref'd); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). Appellant's burden requires him to establish his claims by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992)).

The first prong of the Strickland test requires us to decide whether appellant has demonstrated that counsel's performance was unreasonable under the prevailing norms and that the challenged action was not sound trial strategy. See Strickland, 466 U.S. at 688. Appellant must show that counsel made such serious errors that he "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. We do not evaluate the effectiveness of counsel in hindsight, but from counsel's perspective at trial. Id. at 689. We assess the totality of the representation, rather than isolated acts or omissions. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

We are required to presume that counsel's conduct fell within the wide range of reasonable professional assistance, and appellant must present proof to rebut the presumption that, under the circumstances, the challenged act or omission "might be considered sound trial strategy." See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (quoting Strickland, 466 U.S. at 689); Hernandez, 726 S.W.2d at 55; O'Hara, 837 S.W.2d at 143. An appellant generally accomplishes this by developing a record in a hearing on a motion for new trial or an application for a writ of habeas corpus which focuses on counsel's conduct. See Jackson, 887 S.W.2d at 772 & n.3.

Appellant first argues that his attorney was ineffective because he failed to object to the testimony of the two minors and their respective guardians based upon Texas Rule of Evidence 404(b). To establish ineffective assistance, appellant must show the challenged action was not sound trial strategy. See Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). An attorney's failure to object to admissible evidence does not constitute ineffective assistance of counsel. See McFarland, 845 S.W.2d at 846; Gosch v. State, 829 S.W.2d 775, 789 (Tex. Crim. App. 1991).

At the punishment stage of trial, the parties may offer evidence of any matter the court deems relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1999). This may include evidence of an extraneous crime or bad act shown beyond a reasonable doubt to have been committed by the defendant, whether or not the crime or act has resulted in a conviction. Id. A trial court's actions as to the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). A trial court abuses its discretion if by no reasonable perception of common experience it admits evidence that is not relevant by any reasonable interpretation. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Therefore, an appellate court should not disturb a trial court's decision to admit extraneous offense evidence at the punishment stage of the trial as long as the ruling was at least within the zone of reasonable disagreement. See id.

During the punishment phase, the first minor called by the State testified that she met appellant in September of 1996 when she was thirteen years old. She testified that while sitting in front of her house with a friend, appellant drove by and waved. When she approached appellant's car, he gave her his pager number, told her he was nineteen, and asked her to page him. Shortly thereafter, she testified that she paged appellant and arranged a meeting. Appellant picked her up at approximately 10 o'clock in the evening and drove to a local park, where he produced a condom and asked her to have sex. When she refused, appellant took her home. The minor's stepfather testified that when he confronted appellant about "messing around with 13-year-old girls," appellant denied any wrongdoing.

The first minor's friend identified a statement she made to police describing events that culminated in an act of sexual intercourse with appellant. At the time she and appellant had sex, the second minor was twelve years old. Her mother testified that when she questioned appellant about his involvement with her daughter and her daughter's friend, appellant said "that he was married, that he was 19 years old, and what would he want with two 13-year-olds." The mother of the second minor also testified that appellant showed no remorse nor did he promise to stay away from the girls.

In a prosecution for aggravated sexual assault of a child, evidence of two other instances of appellant's involvement with young children, including one instance of alleged sexual intercourse with a twelve-year-old, is relevant to his character, which is an issue in sentencing. See Cain v. State, 976 S.W.2d 228, 236-37 (Tex. App.--San Antonio 1998, no pet.) (citing Pondexter v. State, 942 S.W.2d 577, 584 n.2 (Tex. Crim. App. 1996) (explaining relevancy of character at sentencing as distinguished from guilt/innocence phase of trial)). We conclude that the trial court did not abuse its discretion in admitting evidence of appellant's extraneous crimes or bad acts. See Tex. R. Evid. 402. Because the testimony of the four witnesses was admissible, appellant's counsel did not render ineffective assistance by failing to object. See McFarland, 845 S.W.2d at 846.

Appellant next contends that while the extraneous offense evidence offered at the punishment stage was arguably relevant to sentencing, the testimony was extremely prejudicial; therefore, counsel should have at least requested that the trial court make a determination as to whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. We reject appellant's contention. While the testimony of the girls and their guardians was unquestionably prejudicial to appellant, the extraneous crimes and bad acts were quite similar to the charged offense and therefore were inherently probative. See Montgomery, 810 S.W.2d at 389-90, 393. Moreover, the extraneous crimes or bad acts testified to allegedly occurred less than one year before the charged offense, further enhancing the probative nature of the testimony. Finally, appellant does not suggest any unfair prejudice other than that related to the similarity between the extraneous acts and the charged offense. Balancing the compelling nature of the extraneous offense evidence against its prejudicial impact, we cannot say that the trial court abused its discretion in admitting the evidence; therefore, appellant's counsel did not render ineffective assistance by failing to object to the admission of the evidence based upon Rule 403.

Appellant's remaining complaints concern counsel's failure to cross-examine any of the State's witnesses, in particular, his failure to cross-examine the second minor or object to the admission of her statement; counsel's failure to present a closing argument; and counsel's failure to object to various statements made by the State in its closing argument, including a statement that a paternity test had proven conclusively that appellant was the father of the child of the fourteen-year-old victim. Each of appellant's remaining complaints concern matters inherently based on trial strategy. As stated previously, appellant has the burden to provide a record from which we may determine that trial counsel's performance was not based on sound strategy. See Mayhue v. State, 969 S.W.2d 503, 511 (Tex. App.--Austin 1998, no pet.) (citing Jackson, 877 S.W.2d at 771).

In this case, appellant did not file a motion for new trial and request a hearing at which he could have developed such a record.⁽²⁾ See id. (citing Reyes v. State, 849 S.W.2d 812, 814-15 (Tex. Crim. App. 1993) (defendant may raise ineffective assistance of counsel claim and develop record in proceeding on motion for new trial)). Hence, we have no record before us focused on the conduct of counsel and the strategic bases for counsel's trial decisions. In the absence of such a record, appellant cannot in this direct appeal overcome the strong presumption that his trial counsel's strategy was reasonable from counsel's perspective at trial. See Ex parte Duffy, 607 S.W.2d at 513 (where alleged errors are of omission, collateral attack may be vehicle by which examination of alleged ineffectiveness may be developed and spread upon a record).

Nothing in the trial record reveals counsel's trial strategy with regard to the omissions that appellant alleges show the ineffectiveness of counsel's representation. The record before us is insufficient to support such a conclusion. See Jackson, 877 S.W.2d at 771-72; Gravis v. State, 982 S.W.2d 933, 937 (Tex. App.--Austin 1998, pet. ref'd); Mayhue, 969 S.W.2d at 511; O'Hara, 837 S.W.2d at 144. Because appellant has failed to show that his counsel's performance was deficient under the first prong of the Strickland test, we need not address whether any alleged deficient performance prejudiced the defense under Strickland's second prong. See Miranda v. State, 993 S.W.2d 323, 329 (Tex. App.--Austin 1999, no pet.).

CONCLUSION

Having overruled appellant's issues, we affirm the trial court's judgment.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: August 26, 1999

Do Not Publish

1. Following the February 18 punishment hearing, the parties filed a joint motion to abate the appeal and remand the cause to district court for sentencing in appellant's presence in accordance with article 42.03, section 1 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (West Supp. 1999). This Court granted the motion on May 13, 1999, and the district court pronounced sentence in appellant's presence on May 18, 1999. The appeal was reinstated on the docket of this Court without further order upon the receipt of the supplemental record.

2. The record reflects that at the May 18 sentencing hearing, appellant, who was represented at the hearing by an attorney appointed for appellate purposes, was told by the trial judge that he had thirty days in which to file a motion for new trial.

ed its discretion in admitting the evidence; therefore, appellant's counsel did not render ineffective assistance by failing to object to the admission of the evidence based upon Rule 403.