11th Court of Appeals
Eastland, Texas
Opinion
Lawrence James Napper
Appellant
Vs. Nos. 11-02-00017-CR & 11-02-00018-CR - Appeals from Harris County
State of Texas
Appellee
The jury convicted appellant of the aggravated sexual assault and aggravated kidnapping of a child. His punishment was assessed at imprisonment for life under the mandate of TEX. PENAL CODE ANN. ' 12.42(c)(2) (Vernon Supp. 2003) based upon the jury=s determination that appellant had previously been convicted of similar offenses. In his sole appellate issue, appellant alleges ineffective assistance of trial counsel during the guilt/innocence phase. We affirm.
E.T., a six-year-old boy, testified that a man forced him to get inside a car on February 11, 2001, at a location near the boy=s home. The only witnesses to the kidnapping were other children who were E.T.=s siblings and neighborhood friends. The man sped away from the scene with E.T. The other children remained in the area where the kidnapping occurred for an undetermined period of time to see if the man would return E.T. to the area. They then reported the kidnapping to their babysitter. The babysitter, who was one of the children=s grandmother, initially did not believe their report of the kidnapping. Police officers were subsequently dispatched to the scene at 3:12 p.m. Authorities were unable to locate E.T. until the next day.
The kidnapper transported E.T. to a house whereupon he tied E.T. to a bed. E.T. stated that the kidnapper Awet his face@ at some point. The kidnapper subsequently returned E.T. to E.T.=s neighborhood the next day. Swabs taken of E.T.=s face revealed the presence of semen. His face was bruised as a result of the ordeal.
Appellant became a suspect as a result of the police receiving a Crime Stoppers= tip on February 23, 2001. Appellant was on maximum supervision parole at the time for previous rape convictions. Appellant wore an electric monitoring device on the date of the kidnapping which kept track of the times he remained at home. This device did not record appellant=s whereabouts while he was away from home. The monitoring device indicated that appellant arrived at his home at 3:07 p.m. on the day of the kidnapping.
While E.T. did not identify appellant as his kdinapper at trial, police officers testified that E.T. identified appellant during a video lineup. E.T. and the other children also identified appellant=s car as the one driven by the kidnapper. E.T.=s description of the kidnapper=s house and its contents was consistent with appellant=s house. E.T. told the police that the man put Aorange grease@ on his body. The police found a bottle of orange coconut butter location in appellant=s bedroom. The State=s DNA expert testified that appellant=s DNA was consistent with the DNA extracted from the semen found on E.T.=s face. The expert further testified that the odds of another individual being the contributor of the semen to be 1 in 1.3 trillion.
Appellant testified in his own behalf at trial. He vehemently denied that he kidnapped and sexually assaulted E.T. Appellant testified that he traveled to his cousin=s grandmother=s house on the day of the kidnapping in order for his cousin to work on appellant=s car=s stereo system. His cousin=s grandmother=s house was located near the area where the kidnapping occurred. He stated that he arrived at his cousin=s grandmother=s house sometime around 10:30 a.m., that he left at approximately 2:30 p.m., and that he returned directly to his home by 3:07 p.m.
Appellant presented his ineffective assistance claim to the trial court in a motion for new trial. The trial court overruled appellant=s complaint by denying the motion for new trial. The only evidence offered at the hearing on the motion for new trial were affidavits received into evidence by the trial court. See TEX.R.APP.P. 21.7. Appellant=s evidence consisted of affidavits prepared by a DNA expert, of the testimony of one of appellant=s parole officers, and of appellant=s unsworn declaration submitted under the provisions of TEX. CIV. PRAC. & REM. CODE ANN. ' 132.001 et seq. (Vernon 1997 & Supp. 2003). The DNA expert=s affidavit criticized the manner in which trial counsel handled the State=s presentation of the DNA evidence at trial. The parole officer=s affidavit asserted that trial counsel failed to elicit testimony from him which might have established an alibi for appellant. Appellant=s declaration expressed his general dissatisfaction with trial counsel.[1] The State offered an affidavit from appellant=s trial counsel which responded to appellant=s charges.
To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his counsel’s performance fell below an objective standard of reasonableness and that there is a “reasonable probability” the result of the proceeding would have been different but for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App.2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). The purpose of this two-prong test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App.1999), citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den’d, 508 U.S. 963 (1993).
The review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000), cert. den=d, 532 U.S. 1053 (2001). In order to defeat Strickland=s presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson v. State, supra at 814, quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997). We do not review the Strickland standards in a de novo fashion; we review them through the prism of an abuse of discretion standard to determine whether the trial court=s decision to deny the motion for new trial was so outside the zone of reasonable disagreement that it is subject to reversal. State v. Gill, 967 S.W.2d 540, 542 (Tex.App. B Austin 1998, pet=n ref=d). Appellant attacks various instances of trial counsel=s performance in his brief. The first matter involves an allegation that trial counsel failed to elicit testimony from appellant=s parole officers regarding the fact that the electric monitoring system indicated that he had returned home at 3:07 p.m. on the day of the kidnapping. Trial counsel=s affidavit stated as follows regarding his views pertaining to the time appellant returned home:
I did not spend a significant amount of time surrounding [appellant=s] arrival at his home on the date of the offense. This was done because it would not eliminate [appellant] as being capable of committing the offenses alleged. The record was clear that [appellant] was in an area not too far from the kidnapping. The record was also clear that there were several intervening circumstances that took place prior to the kids eventually telling [the babysitter], who then called the police. This would have allowed [appellant] to have more than enough time to travel from the kidnapping scene to his residence.
The record does not demonstrate within a reasonable degree of probability that the result would have been different had this testimony been offered through the parole officers. This evidence came before the jury through other witnesses, primarily through appellant=s testimony. The State did not dispute appellant=s testimony as evidenced by the following dialogue between the prosecutor and appellant during cross-examination:
Q: Do you remember getting home at 3:07, according to your monitor?
A: Yes.
Q: But in between 10:03 and 3:07 you know you can=t be tracked; is that correct?
A: Say that again.
Q: You know that in between 10:03 and 3:07 your whereabouts cannot be tracked; correct?
A: Well, I know at 3:10 the child was picked up and I was home at 3:07, so I couldn=t have been there to pick up that child.
Contrary to appellant=s above-quoted response, the record does not establish that the kidnapping occurred at 3:10 p.m. The record establishes that the police received a report of the kidnapping at 3:12 p.m. The testimony of the other children indicated that the kidnapping had occurred sometime prior to the report to the police. The children first waited around the area where the kidnapping occurred to see if the kidnapper would bring E.T. back before reporting the incident. The report to the police was further delayed by the babysitter=s initial reluctance to believe their report. As a result of the delay between the kidnapping and the report to the police, the evidence of appellant=s arrival at his house at 3:07 p.m. does not necessarily exclude him from being the kidnapper.
Appellant additionally complains that trial counsel elicited damaging testimony from his parole officers concerning his prior convictions and details of his previous level of surveillance while on parole. The record establishes that trial counsel called the parole officers to testify at appellant=s insistence. Trial counsel stated on the record during a discussion which occurred outside of the presence of the jury that he had advised appellant against calling the parole officers as witnesses in order to avoid the introduction of evidence that appellant was on parole for more than one previous sexual assault offense.[2] The trial court made the following statement to appellant regarding the consequences of the parole officers testifying: AI want to make sure you understand, Mr. Napper, if those folks get up on the stand to testify clearly the jury is going to know you=re on parole. And I can B they are entitled to know what you=re on parole for.@
Trial counsel questioned the parole officers about appellant=s prior convictions during his direct examination of them. Trial counsel also questioned the parole officers about the details of the surveillance which they had maintained on appellant. The parole officers testified that, prior to the kidnapping, appellant had been monitored by an electronic tracking device which recorded his whereabouts at all times. Prosecutors developed testimony during cross-examination of the parole officers that very few parolees are monitored by these tracking devices. Appellant contends that trial counsel should not have questioned the parole officers about his prior convictions. He further contends that trial counsel should have sought to exclude this testimony from being offered through the parole officers by asserting an objection under TEX.R.EVID. 403 based upon unfair prejudice.[3] Appellant also complains that trial counsel=s questions regarding the tracking device permitted prosecutors to develop testimony showing that appellant was considered to be a dangerous parolee. Appellant additionally asserts that trial counsel should have asked the trial court to give limiting instructions whenever the evidence of his prior convictions and previous level of surveillance was admitted. Trial counsel stated in his affidavit that he did not request limiting instructions in order to minimize the jury=s attention to these matters.
Our review of the record does not indicate that trial counsel=s questioning of the parole officers regarding appellant=s prior convictions and the details of his parole fell below an objective level of reasonable performance. As noted above, the trial court had previously informed appellant and trial counsel that it would permit the admission of evidence of appellant=s prior convictions if the parole officers testified. Trial counsel=s decision to address the unfavorable facts concerning appellant=s parole during the direct examination of the parole officers was not unreasonable because these facts most likely would have been addressed by the prosecutors during cross-examination. Furthermore, trial counsel did not want to call the parole officers as witnesses as a part of his trial strategy. He only called them as witnesses at appellant=s insistence after appellant had been warned of the adverse consequences of which appellant now complains on appeal. When a defendant preempts his attorney=s strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made. See Duncan v. State, 717 S.W.2d 345, 348 (Tex.Cr.App.1986). The record further does not conclusively establish that the trial court would have sustained a Rule 403 objection to these matters as the trial court exercises broad discretion in applying the rule. See Moreno v. State, 22 S.W.3d 482, 487 (Tex.Cr.App.1999); Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Cr.App.1991). With respect to trial counsel=s decision to not request limiting instructions, courts have recognized that counsel=s desire to not remind the jury of adverse matters is a reasonable trial tactic. See Ali v. State, 26 S.W.3d 82, 87 (Tex.App. B Waco 2000, no pet=n).
The remainder of appellant=s ineffective assistance claim attacks trial counsel=s handling of the State=s DNA evidence. The State presented its DNA evidence through the testimony of Mary Childs-Henry and Joseph Chu. Childs-Henry, a forensic biologist/serologist with the Houston Police Department Crime Laboratory, identified the swabs from E.T.=s face as containing semen. Childs-Henry was able to extract a sufficient amount of DNA from the facial swabs for comparison purposes. Chu, a DNA analyst with the Houston Police Department Crime Laboratory, determined that the DNA extracted from the facial swabs was consistent with appellant=s DNA sample.
Trial counsel obtained authorization from the trial court to retain a DNA expert at the State=s expense. However, trial counsel ultimately did not retain a DNA expert. Trial counsel stated in his affidavit that one of the prosecutors advised him that no DNA sample remained from the swab of E.T.=s cheek to be tested by the defense. Trial counsel decided not to retain a DNA expert because of the lack of a sample for independent testing. Trial counsel stated as follows in this regard:
I felt that it was not in [appellant=s] best interest to utilize an expert to conduct an independent analysis of the procedures used by the State. I reached this conclusion because I was of the opinion that, as trial strategy, I could effectively argue the unfairness of no sample being available for the defense to analyze. I also believed that if there were some issues with regard to methodologies and procedures, I could get more mileage out of this on cross examination. The distinct possibility that our expert would confirm the propriety of the State=s methodologies and procedures during the laboratory testing, thereby reinforcing the validity of the d.n.a. results, was also a concern that I had.
Appellant=s contention with regard to the DNA evidence is based on the affidavit of Dr. Elizabeth A. Johnson, a DNA expert from California.[4] Dr. Johnson=s affidavit asserts numerous deficiencies with respect to trial counsel=s handling of the DNA evidence. She contends that the testimony of Childs-Henry and Chu was weak and poorly cross-examined. Dr. Johnson asserted that she has reviewed numerous other cases involving analyses performed by Childs-Henry and Chu and that she has detected serious errors in their work in most of these other cases. She concluded her affidavit by stating as follows:
In conclusion, the testing and analysis of the [Houston Police Department] lab in this case is potentially seriously flawed, and may contain errors that could have resulted incorrect conclusions (sic) that were reported and testified to in trial. The lack of adequate cross-examination of the scientific witnesses by defense counsel does not allow the jury to have an understanding of these potential flaws or bias on the part of the [Houston Police Department] lab staff.
While Dr. Johnson=s affidavit criticizes trial counsel=s performance, it does not allege any actual errors in Childs-Henry=s and Chu=s work which trial counsel failed to discover or develop. She instead only cites potential errors in their analyses which may have occurred. The record, therefore, does not show within a reasonable degree of probability that the results of the proceeding would have been different but for trial counsel=s allegedly deficient performance. Moreover, the record does not affirmatively establish that trial counsel=s performance fell below an objective standard of reasonableness with respect to the DNA evidence. Trial counsel strenuously cross-examined the police officers who obtained the facial swabs from E.T. in an effort to suggest that the manner in which the swabs were handled did not prevent them from being contaminated. He also emphasized the lack of a remaining sample for appellant to test independently.
In summary, the record does not establish that trial counsel=s performance fell below an objective standard of reasonableness. Furthermore, the evidence of appellant=s guilt was ample. The record does not demonstrate within a reasonable degree of probability that the result of the proceedings would have been different irrespective of the matters asserted by appellant. Appellant=s sole appellate issue is overruled.
The judgments of the trial court are affirmed.
PER CURIAM
December 19, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The reporter=s record indicated that appellant made repeated outbursts during the proceedings which expressed his disagreement with trial counsel and the proceedings in general. Appellant had to be removed from the courtroom on at least one occasion as a result of these outbursts.
[2]This discussion outside of the jury=s presence also addressed trial counsel=s recommendation to appellant not to testify in order to prevent the jury from learning about his prior convictions. Appellant stated in the declaration attached to his motion for new trial that the only reason he testified at trial was due to trial counsel=s failure to obtain the arrival time testimony from the parole officers. However, the record reflects that appellant intended to testify before the parole officers ever took the stand.
[3]Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
[4]Dr. Johnson stated in her affidavit that she established the DNA analysis laboratory within the Harris County Medical Examiner=s Office.