11th Court of Appeals
Eastland, Texas
Opinion
Timothy Wayne Buchanan
Appellant
Vs. No. 11-00-00368-CR B Appeal from Borden County
State of Texas
Appellee
The jury convicted appellant of aggravated sexual assault of a child and assessed a 60-year sentence and a $10,000 fine. TEX. PENAL CODE ANN. ' 22.021 (Vernon Supp. 2002). Appellant presents two issues on appeal. Appellant complains that the trial court improperly excluded certain evidence under TEX.R.EVID 412. Appellant also complains that his trial counsel was so ineffective that he was denied his constitutional rights. We affirm.
Background Facts
Appellant sexually assaulted his 12-year-old daughter sometime in April of 1999. The authorities were made aware of the sexual assault in July of 1999, and they began an investigation. Part of the investigation included a physical examination of the victim. Appellant does not challenge the sufficiency of the evidence.
Testimony Excluded Under Rule 412
Kim Wallach, a registered nurse, performed a physical examination of the victim during October of 1999, approximately six months after the sexual assault occurred. On direct examination, Wallach testified that the victim=s hymen was torn, but Wallach could not say when the injury occurred. Wallach also testified that she could not identify who or what caused the injury. Wallach=s testimony was brief; there was no cross-examination.
After the victim testified on direct examination, appellant asked for an in camera hearing under Rule 412(c). The trial court held the in camera hearing, and the victim was questioned with appellant, appellant=s attorney, and the prosecutor in attendance. Appellant=s attorney questioned the victim about a prior incident of sexual abuse when she was four years old. Appellant claimed that a prior incident would rebut Wallach=s medical testimony about the victim=s torn hymen. Rule 412(b)(2). The trial court determined that the testimony did not rebut the medical evidence, directed appellant not to go into those matters, and then sealed the record of the hearing under Rule 412(d).
Later during a break, the trial court held an additional Rule 412(c) in camera hearing where appellant produced a sheriff=s department report concerning a prior sexual assault of the victim by someone other than appellant. Appellant re-urged his need for the victim=s testimony. The prosecutor stated that she had no objection to appellant questioning the victim=s mother about the prior sexual assault or to the mother referring to the sheriff=s report. Appellant agreed to this procedure. Because both sides were in agreement, the trial court ruled that it would allow the mother=s testimony. The trial court then sealed the record of the second hearing as required by Rule 412(d).
Appellant makes two arguments about the victim=s testimony that was excluded under Rule 412: (1) appellate counsel=s inability to review the sealed record of the victim=s testimony under the holding of Kesterson v. State, 959 S.W.2d 247 (Tex.App. B Dallas 1997, no pet=n), effectively denies appellant his right of appeal; and (2) the victim=s testimony about the prior sexual assault should not have been excluded under Rule 412 because Rule 412 does not apply to such testimony.
Appellate counsel states that appellant=s trial counsel would not cooperate in preparing the appeal. Appellate counsel contends, therefore, that he could not adequately prepare an appeal because he could not review the sealed record. Rule 412(d) requires the trial court to Aseal the record of the in camera hearing required in paragraph (c) of this rule for delivery to the appellate court in the event of an appeal.@ Thus, Rule 412(d) indicates that the appellate court shall have the sealed evidence available for review purposes, but there is nothing in Rule 412 that makes the sealed evidence available to an appellant for appeal preparation. The Dallas Court of Appeals addressed this exact issue in Kesterson and held that the record produced in the in camera hearing cannot be reviewed and used by an appellant when preparing an appeal. The Kesterson court noted that, were the record to be unsealed, the trial court would be making public the very information the rule intended to keep confidential. This would defeat the purpose of the rule from the standpoint of the complainant. Kesterson v. State, supra at 248.
Kesterson acknowledged that an appellant without the record of the in camera hearing will be unable to make specific references in his brief to the testimony presented at the hearing; however, an appellant may identify the general nature of the testimony and discuss why he believes the trial court erred in its ruling. The reviewing court will then review appellant=s complaints within the context of the entire record, including that portion sealed by the trial court. Kesterson v. State, supra at 248. Implicit in this procedure is an assumption that appellant and appellant=s attorney are knowledgeable about the general nature of the testimony of the in camera proceeding. Here, appellant was present during the in camera proceeding. Although appellant has a different attorney on appeal, appellant, in his brief, was able to adequately identify the general issues and content of the in camera hearing.
Appellant argues that the review process under Kesterson places a reviewing court in an improper role of serving as an advocate, the role specifically reserved to the attorneys of the parties. We disagree. The trial court=s role is to examine the proffered testimony in light of the issues at trial and determine if some or all of the evidence is material. If it is material, the trial court will then determine whether its prejudicial nature outweighs its probative value. Holloway v. State, 751 S.W.2d 866, 870 (Tex.Cr.App.1988). An appellate court will then review that decision for abuse of discretion. Holloway v. State, supra at 870. Our appellate review of the trial court=s decision is made within the context of the entire record, including the portion sealed by the trial court. Kesterson v. State, supra at 248. Appellate counsel=s inability to review the sealed record did not deny appellant of his right of appeal.
Appellant next contends that the trial court erred by excluding the victim=s testimony about her past sexual assault. Appellant contends that this evidence was relevant because it would have provided the jury with another explanation for the victim=s torn hymen. Rule 412(b) governs the admissibility of evidence of previous sexual conduct. Specific instances of a victim's past sexual conduct are admissible only if three conditions are met: (1) the evidence falls within one of the limited exceptions in Rule 412(b)(2); (2) the defendant informs the court outside the jury's presence prior to introducing the evidence or asking questions about the victim=s past sexual behavior as provided in Rule 412(d); and (3) the trial court finds that the probative value of the evidence outweighs the danger of unfair prejudice. Rule 412.
Appellant first argues that Rule 412(b) only applies to a Avictim=s past sexual behavior [conduct]@ and does not apply to prior sexual assaults of the victim because sexual assault involves the perpetrator=s sexual behavior. Rule 412 refers to instances of prior "sexual behavior" without specifying that it applies only to voluntary behavior and not to involuntary behavior of the victim. Texas courts have used Rule 412(b) to determine admissibility of evidence of a prior sexual assault of a child even though the sexual assault involved involuntary behavior on the child=s part. Wheeler v. State, 79 S.W.3d 78 (Tex.App. - Beaumont 2002, no pet=n); Kesterson v. State, 997 S.W.2d 290 (Tex.App. B Dallas 1999, no pet=n); Marx v. State, 953 S.W.2d 321 (Tex.App. B Austin 1997), aff=d, 987 S.W.2d 577 (Tex.Cr.App.1999); Reynolds v. State, 890 S.W.2d 156 (Tex.App. B Texarkana 1994, no pet=n). We hold that the trial court did not err in applying Rule 412 in this case even though the prior sexual assault involved involuntary behavior on the victim=s part.
Next, appellant argues that the victim=s testimony is necessary to rebut the medical testimony under Rule 412(b)(2). Wallach testified that the victim=s hymen was torn but could neither determine when the tear occurred nor identify how the victim=s hymen was torn. Wallach=s testimony did not tend to corroborate the victim=s identification of appellant as the assailant. Her testimony only concluded the victim=s hymen was torn. The State made no attempt to argue that the torn hymen implicated appellant. The trial court correctly concluded that the excluded evidence was not necessary to explain or rebut the State=s evidence. Marx v. State, supra at 337.
Even if the evidence was construed to rebut the medical testimony, the third condition of Rule 412 required the trial court to find that the probative value of the evidence outweighed the danger of unfair prejudice. Rule 412(b)(3). Because testimony of the prior sexual assault was introduced through the victim=s mother, the trial court did not abuse its discretion in excluding the victim=s testimony. See Miles v. State, 61 S.W.3d 682, 687 (Tex.App. B Houston [1st Dist.] 2001, pet=n ref=d)(indicating that evidence of prior sexual history could have been introduced through means other than a cross-examination of the alleged victim). Also, both appellant and the prosecutor agreed to allow the evidence to be entered through the victim=s mother=s testimony. Because both parties agreed to this procedure, there was no error preserved. We overrule appellant=s first issue.
Ineffectiveness of Counsel
Appellant complains that the defense put forth by his trial counsel was so ineffective that appellant was denied his rights under the Sixth Amendment of the United States Constitution and under Article I, section 10 of the Texas Constitution.
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 Areasonable probability@ that the result of the proceeding would have been different but for counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668 (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-pronged 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). When the record is silent on the motivations underlying counsel=s tactical decisions, the appellant usually cannot overcome the strong presumption that counsel=s conduct was reasonable. See Thompson v. State, supra at 813. 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)). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel=s actions. Thompson v. State, supra at 813-14.
Appellant complains that: (1) there is no evidence in the record of a motion to change venue; (2) trial counsel could not exclude an expert witness; (3) trial counsel did not file a motion for new trial; and (4) there is no record of trial counsel=s strategy.
There is no indication in the record why trial counsel did not attempt to change venue. Therefore, there is nothing to overcome the strong presumption that counsel=s conduct was reasonable. Thompson v. State, supra at 813. Appellant next argues that expert witness Wallach=s testimony should have been excluded. Appellant=s trial counsel made several efforts to exclude Wallach=s testimony but was overruled by the trial court. The record shows that Wallach was not clearly disqualified to testify; therefore, the admittance of her testimony was within the sound discretion of the trial court.
Appellant=s last two contentions are that there was no motion for a new trial and that there is no record of trial counsel=s strategy. Appellant does not state why a motion for a new trial should have been filed. As previously stated, the record is often underdeveloped and cannot adequately reflect the motives behind trial counsel=s actions. Thompson v. State, supra at 813-14. This is true in appellant=s case. We can find no evidence to overcome the strong presumption that counsel=s conduct was reasonable. We overrule appellant=s second issue.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
November 7, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Wright, J., and
McCall, J., and McCloud, S.J.[1]
[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.