MEMORANDUM OPINION
Nos. 04-04-00292-CR, 04-04-00293-CR, 04-04-00294-CR,
04-04-00295-CR, and 04-04-00296-CR
John Robert NORMAN, Jr., Appellant
v.
The STATE of Texas, Appellee
From the 216th Judicial District Court, Kendall County, Texas Trial Court Nos. 4148, 4149, 4150, 4151, and 4152 Honorable Stephen B. Ables, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: December 5, 2007
AFFIRMED AS REFORMED
John Robert Norman was convicted of three counts of sexual assault and two counts of indecency with a child and was sentenced to twenty years on each count to run concurrently. He brings four issues on appeal: (1) whether restitution was properly assessed and imposed; (2) whether the sentences for indecency with a child should be reformed; (3) whether the trial court improperly allowed the State to introduce and use extraneous, unadjudicated offenses in cross-examination and rebuttal; and (4) whether he was denied effective assistance of counsel. We affirm the judgments as reformed.
Factual and Procedural BACKGROUND
On the afternoon of June 24, 2003, John Robert Norman, a business owner and father of two children, was arrested. His arrest stemmed from a statement given by N.C. to a police detective the day before. N.C. was Norman's employee and also a friend of Norman's son.
In his sworn statement to police, N.C. affirmed that he had been sexually abused by Norman. According to N.C., the sexual abuse began around February 2001 and ended around November 2001, and occurred at various times and locations: while spending the night at the Normans' home, while riding in Norman's car, and while working at Norman's place of business.
Based on N.C.'s sworn statement, Norman was indicted on three counts of sexual assault and two counts of indecency with a child. Norman pled guilty to all five offenses. After a punishment hearing, he was sentenced to twenty years in all five cases to run concurrently with restitution as a condition of parole.
Norman filed a motion for a new trial, but his motion was denied without a hearing. He then appealed. On July 6, 2005, in an interlocutory opinion, we held that "the trial court abused its discretion in failing to conduct a hearing on Norman's motion for a new trial." Norman v. State, Nos. 04-04-00292-CR to 04-04-00296-CR, 2005 WL 1552318, at *2 (Tex. App.--San Antonio 2005). We abated the appeal and remanded the cause to the trial court for an evidentiary hearing on Norman's motion for a new trial. Id. at *3.
On December 7, 2005, the trial court heard Norman's motion for a new trial. During the hearing, Norman called his defense counsel and the prosecutor as witnesses. After hearing the evidence, the trial court denied the motion. After the supplemental appellate record was filed, we reinstated this appeal on the docket of this court.
On October 11, 2006, we issued an opinion sustaining one of Norman's issues and holding that the trial court's restitution order was not supported by a factual basis. Norman v. State, Nos.
04-04-00292-CR to 04-04-00296-CR, 2006 WL 2871257, at *3 (Tex. App.--San Antonio 2006). We then abated the appeal and remanded the cause for a hearing to determine a just amount of restitution. On February 8, 2007, at the hearing on restitution, the State informed the trial court that it was abandoning its request for restitution. After the supplemental appellate record was filed, we reinstated this appeal on the docket of the court.
DiscussionA. Restitution
With respect to Norman's first issue, because the State on remand abandoned its request for restitution, we reform the judgment in cause number 4148 to delete any reference to restitution. (1)
B. Sentences for Indecency with a Child
In his second issue, Norman argues that the trial court had no authority to sentence him to twenty years on the two counts of indecency because it had already sentenced him to ten years on each count. We disagree. The trial court had the authority to modify its sentence pursuant to State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005).
At the end of the sentencing hearing on January 8, 2004, the trial court pronounced that it was sentencing Norman "to thirty years in the penitentiary in each of these five cases" to run concurrently. The State immediately informed the trial court that thirty years was beyond the range of punishment for the offenses:
State: [I]t's a sexual assault, indecency, so maximum is twenty, but does the Court want those stacked?
Court: No, I'm sorry, Ms. Kuvasz, I thought we had all five the same. We have got two twenties and three lifes; is that correct?
State: No, actually, Your Honor, there's two twenties - three twenties and two tens, indecency.
Court: That is my fault; I'm sorry. So we are going to have three twenty-year sentences and two ten-year sentences, so [it] will be a maximum sentence in all these cases, and they will run concurrent.
State: I'm sorry. I think the indecency by contact is also going to be twenty. It is; they're all twenties, Your Honor.
Court: All five are twenties?
State: Yes, Your Honor.
Court: Correct? Then, Mr. Norman, you are sentenced to twenty years in the penitentiary in all five cases, and they will run concurrently.
According to Norman, the trial court had the authority to modify its first sentence because it was outside the range of punishment and therefore of no effect. However, Norman claims that once the trial court announced that it was sentencing him to ten years of imprisonment on the indecency charges, it had no authority to change the sentence for those offenses to twenty years. In Aguilera, however, the court of criminal appeals held that a trial court "retains plenary power to modify its sentence if . . . the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day." Id. at 698. "The resentencing must be done in the presence of the defendant, his attorney, and counsel for the State." Id. Here, the trial court modified its sentence on the same day of the initial sentence and before it adjourned for the day. It did so in the presence of Norman, his attorney, and the State's attorney. Therefore, the trial court did not abuse its discretion in modifying the sentence. See id. (holding that trial court "was acting within its authority when, only a few minutes after it had initially sentenced appellee and before it had adjourned for the day, it modified appellee's sentence").
We overrule this issue.
C. Extraneous Offenses
In his third issue, Norman argues that the trial court, during the punishment hearing, erred in allowing the State to use and introduce evidence of extraneous offenses without first giving timely notice to the defense. In response, the State argues that because Norman "opened the door," the trial court did not err in admitting the evidence. We review a trial court's ruling concerning the admissibility of evidence of other crimes, wrongs, or acts under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 387, 391 (Tex. Crim. App. 1991).
Before the punishment hearing, Norman filed a motion to exclude extraneous matters, arguing that despite his requesting notice of extraneous unadjudicated offenses under article 37.07, section 3(g), of the Texas Code of Criminal Procedure, the State had failed to provide notice. Before the sentencing hearing, the trial court heard and granted Norman's motion.
During opening statement at the punishment hearing, defense counsel stated that Mark Steege, a clinical social worker with a speciality in sexual abuse and sexual dysfunction, had evaluated the likelihood of Norman re-offending and found the likelihood to be low:
When [Norman] was contacted by law enforcement, he went immediately down to the police department, voluntarily. He's fully aware of his legal rights. He knew he had the right to remain silent, not to give them any statement, but he gave a full and complete statement to law enforcement, admitting every single thing he did and admitting that everything he did was inappropriate.
Soon after that, he became involved with Mark Steege, who's done an evaluation. This was back in August and September. He conducted an evaluation of him. That evaluation will show that Mr. Norman, a now forty-nine year-old man, this is a onetime anomaly in his life. Prior to this happening, there's no occurrences of any inappropriate conduct with any other individual or with this complainant. After it happen[ed], of course, no inappropriate occurrence happen[ed] with this or any other complainant. He's been in counseling and therapy on a regular basis ever since that happened.
(emphasis added).
Then, during Norman's case-in-chief, defense counsel moved to admit in evidence letters from individuals. These letters vouched for Norman's good character and attempted to persuade the trial court to place Norman on community supervision. Many of these letters suggested that Norman's behavior was a single mistake, not a pattern of behavior. On defense counsel's request, the trial court admitted the letters in evidence.
Additionally, when Mark Steege testified, defense counsel asked Steege, "Is there anything you have heard today - you have been sitting here [during] the entire proceedings thus far. You have heard from the complainant. You have heard the tape. Is there anything you have heard today that would cause you to change your opinion on this matter?" Steege replied, "No, there is nothing." Later, defense counsel asked Steege whether, considering everything he knew about Norman, there was a likelihood that Norman would commit the offense again. Steege replied, "I think that the likelihood of reoffense is very small."
In response to this evidence, the State argued that defense counsel had "opened the door" to the extraneous unadjudicated offenses. The trial court agreed. The State then questioned Steege about his knowledge of the extraneous unadjudicated offenses:
Q: [Defense counsel] asked you if there was anything you heard that would cause you to change your opinion. When was the first time you heard that there was an allegation that this had happened approximately 60 times and has also happened prior to the victim turning 15?
A: I think yesterday.
Q: Okay, and that doesn't change your opinion?
A: No.
The State then recalled the victim, who testified that the sexual abuse did not occur only five times. According to the victim, there were probably twenty-five to thirty different incidents.
Texas Rule of Evidence 404 embodies the principle that defendants should not be tried for being a criminal generally. See Tex. R. Evid. 404(b). Consequently, extraneous offenses are generally not admissible to prove that committing the charged offense conformed with a defendant's character. See id. However, extraneous, unadjudicated offenses may be admissible in order to rebut a defensive theory. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). By raising a defensive theory, the defendant opens the door for the State to offer rebuttal testimony regarding an extraneous offense if the extraneous offense has common characteristics with the offense for which the defendant is on trial. Jones v. State, 119 S.W.3d 412, 421 (Tex. App.--Fort Worth 2003, no pet.). The State may then introduce evidence of extraneous offenses through both cross-examination and rebuttal testimony without notice to defense counsel. Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002).
Here, defense counsel put on a mitigation case, arguing that Norman was a good candidate for probation. Norman's mitigation case raised the issue of his good character and the likelihood of reoffending. The record reflects that at the beginning of the punishment hearing, Norman's attorney introduced into evidence character reference letters. Many of these letters suggest that Norman's behavior was a single mistake and not a pattern of behavior. In his opening statement, defense stated that "this is a onetime anomaly in his life." Next, Steege testified that Norman is a "responsible person who did something terribly wrong, he's sorry for it, and I believe has begun what he needs to do to become once again a responsible, productive citizen." Mr. Steege also testified that "the likelihood of reoffense is very small."
The record demonstrates that Norman advanced the theory that the charged offenses were an anomaly in his life and that the chance of reoffense was very small. This theory was subject to rebuttal and cross-examination by the State. The fact that the victim in this case alleged that more instances had occurred could be seen as relevant to Norman's assertions that the charged offenses were anomalies in his life and that it was unlikely that he would reoffend. Therefore, the trial court did not abuse its discretion in allowing the extraneous offenses to be brought into evidence by the State on cross-examination and rebuttal.
We therefore overrule this issue.
D. Ineffective Assistance of Counsel
Finally, Norman argues that his defense counsel provided ineffective assistance of counsel. Norman argues that his trial counsel provided deficient representation by inviting the use of extraneous offenses, failing to seek a continuance in order to investigate the newly alleged extraneous offenses, failing to preserve error with respect to the admission of the extraneous offenses, and allowing the trial court to review the victim impact statement without objecting. (2)
Because the test for ineffective assistance of counsel is the same under the state and federal constitutions, both inquiries are subsumed into one. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez, 726 S.W.2d at 55-57 (applying Strickland test). The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant demonstrates deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. at 813. Absent both showings we cannot conclude that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. An appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and we look to the totality of the representation and the particular circumstances of each in evaluating the effectiveness of counsel. Id. When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the "deleterious effects of hindsight." Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.
Further, the assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Here, Norman's trial counsel testified at the motion for new trial hearing.
Extraneous Offenses
Norman argues that his trial counsel was ineffective for inviting the use of the extraneous offenses, failing to seek a continuance, and failing to preserve any error with respect to extraneous offenses.
Trial counsel received notice that the State intended to use allegations of sixty "uncharged, unadjudicated offenses," on the morning of the day before the sentencing hearing. In response to this notice, defense counsel filed a motion to exclude extraneous matters. After considering defense counsel's motion, the trial court gave the State the option of either proceeding with the sentencing hearing without evidence of the extraneous offenses or giving defense counsel time to prepare. The State informed the court, "We don't intend to go into those [extraneous offenses] unless the door is opened to it, which in this case, he wouldn't be entitled to notice." After both defense counsel and the State agreed to proceed, the trial court granted Norman's motion. However, after resting its case, the State sought to use the extraneous offenses in cross-examination and rebuttal on the theory that defense counsel had opened the door. On these grounds, the trial court allowed the extraneous offenses to be admitted into evidence.
In order to preserve error with respect to the admission of the extraneous offenses defense counsel must make a complaint to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). Defense counsel properly preserved error for appeal by submitting the motion to exclude the extraneous offenses, complaining to the trial court, and presenting the motion for a new trial. Because defense counsel properly preserved error, there is no deficient performance regarding this allegation.
With respect to defense counsel "opening the door," during the motion for new trial hearing, defense counsel testified that although he did not intend to open the door to the extraneous offenses, he was aware of the risk associated with his defensive theory:
Q: It was certainly your goal at this hearing at all times to prevent admission of the evidence of the 60 unadjudicated offenses; correct?
A: We did not want the extraneous offenses admitted.
Q: And your purpose in proceeding with the hearing was to both do whatever you could and not split this into two questions - was to do whatever you could to prevent that evidence of these from coming into evidence; correct?
A: We did not want to allow those into evidence.
Q: And you certainly would not have knowingly taken affirmative actions to allow the State to introduce that which you wanted to exclude; correct?
A: Well, that is a difficult question, because you don't knowingly seek or intend to allow those in, but when you put on a mitigation case, you certainly know that that's a risk and a potential possibility.
***
Q: Okay. In an affidavit that is attached to the motion for new trial, you indicate it was not your intent to open the door to the extraneous matters. Can you explain to the Court what you meant by that?
A: Well, it wasn't my conscious objective and I didn't set out to allow in extraneous offenses. I mean, that would be ridiculous for me to do so or to intentionally seek to allow those in. However, we all know that that's a possibility and a potential risk you run every time you put on a mitigation case, so the benefit of the mitigation case far outweighed the risks of these extraneous offenses.
Defense counsel further testified as to why, in light of these extraneous offenses, he did not seek a continuance:
Q: Okay. Is that [i.e. the risk of letting in extraneous offenses] something you took into consideration and discussed with the Defendant the morning of the punishment hearing prior to asking for a continuance?
A: Yes, we had a lot of discussion during that morning. I believe that was part of it. The other part of the continuance is that issue did arise. The trial court asked the State whether or not they wanted a continuance, and we had some input into that or we had discussions at our table, and the consensus was don't get a continuance. We had gotten the family there from all over the country. What good would it do to have that additional time to try to investigate these? It's uncorroborated statements from the Complainant that we already have inconsistent testimony from, and I think the conversation even came up that that might allow the State to corroborate them and we don't have the opportunity, so we decided it was not a good idea for a continuance.
Q: Okay, so it was trial strategy. You did take into consideration the possibility that putting on mitigation evidence might open the door to extraneous?
A: Sure, we all know that. Every defense attorney who practices in Texas knows that that's a possibility.
Q: So your intent was, is it not true, to take that risk, but then argue that the door had not been opened?
A: Well, sure, you are going to make your argument twofold. You are always going to argue not to open the door, but if you do, you have to deal with the potential consequences, if the trial court determines that you have, of what the detrimental effect of that is, and if it had been other complainants that were corroborated, and certainly our decision may have been different, but it was this same Complainant, who had at the eve of sentencing comes up with 60 uncorroborated, contradictory offenses or incidents. To me, it hurt the Complainant's credibility.
Based on the record, defense counsel acted within the wide range of reasonable professional assistance. Defense counsel's decision to mount a mitigation defense and his decision to proceed with the sentencing hearing without a continuance were both reasonable strategic decisions. The record does not demonstrate that defense counsel's actions were so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. Therefore, because defense counsel's performance was neither deficient for opening the door to extraneous offenses nor for opting not to seek a continuance, Norman's first two allegations of ineffective assistance of counsel are without merit.
Admission of the Victim Impact Statement
Norman also argues that defense counsel improperly allowed the trial court to view the victim impact statement before the court had found him guilty. We disagree.
On December 12, 2003, at the plea hearing, Norman entered a plea of guilty in all five cases. The trial court accepted his plea and found sufficient evidence to find him guilty in all five cases. The trial court then reset the case for a punishment hearing. On January 8, 2004, the trial court heard evidence regarding punishment. At the end of the hearing, the State offered the victim impact statement, which the trial court reviewed before sentencing Norman.
Norman argues that at the time the trial court reviewed the victim impact statement, it had not as of yet found him guilty. It had only found the evidence sufficient to find him guilty. Thus, Norman argues that pursuant to article 56.03(f) of the Texas Code of Criminal Procedure, the trial court improperly reviewed the victim impact statement before finding him guilty. And, Norman argues his trial counsel was deficient in failing to object to the trial court reviewing the statement.
Article 56.03 sets forth the procedures to be observed in relation to the victim impact statement. Subsection (f) provides the following:
The court may not inspect a victim impact statement until after a finding of guilt or until deferred adjudication is ordered and the contents of the statement may not be disclosed to any person unless: (1) the defendant pleads guilty or nolo contendere or is convicted of the offense . . . .
TEX. CODE CRIM. PRO. ANN. art. 56.03 (f) (Vernon 2006) (emphasis added).
Here, at the time the trial court inspected the victim impact statement, Norman had already pled guilty to the offenses. Because Norman had pled guilty, the trial court, pursuant to article 56.03(f), had authority to review the statement. See Berry v. State, 66 S.W.3d 402, 404 (Tex. App.--Austin 2001, no pet.) (holding that trial court, in reviewing victim impact statement even though it had not yet pronounced the appellant guilty, did not violate section 56.03(f) because appellant had pled guilty to the offense); Watson v. State, 974 S.W.2d 763, 765 (Tex. App.--San Antonio 1998, pet. ref'd) (explaining that appellant's argument that trial court erred by admitting victim impact evidence before a finding of guilt because article 56.03(f) "does not bind the court where the defendant pleads no contest"). Therefore, the trial court did not err in reviewing the victim impact statement, and trial counsel was not deficient in failing to object.
We therefore hold that Norman was not denied effective assistance of counsel and overrule this final issue.
Conclusion
As modified, we affirm the judgments of the trial court.
Karen Angelini, Justice
Do not publish
1. The trial court ordered restitution as a condition of parole only with respect to cause number 4148.
2. We note that Norman also argued his trial counsel was deficient for failing to object to the restitution award. However, because we have deleted any reference to the restitution award in the judgment, we need not address this issue.