Affirmed and Memorandum Opinion filed January 17, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00324-CR
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RANDALL M. SAMLALSINGH, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 948,974
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M E M O R A N D U M O P I N I O N
Randall M. Samlalsingh appeals a conviction for aggravated sexual assault of a child under 14[1] on the grounds that: (1) the trial court violated his right to confrontation by limiting his cross-examination of the complainant; and (2) he was denied effective assistance of counsel. We affirm.
Confrontation
Appellant=s first issue argues that the trial court violated his right to confrontation by not allowing him to question the complainant about her pregnancy fathered by another person roughly a year after the assault for which appellant was charged. Appellant argues that the fact of this subsequent pregnancy with another person suggests that the other person may have actually committed the assault for which appellant was charged, and could thus establish bias by the complainant in falsely accusing appellant to protect this person. Appellant contends that the complainant Aopened the door@ to questioning about the subsequent pregnancy by making reference to her Ababy daddy@ during direct examination. The trial court allowed appellant to question the complainant about any sexual relationships she may have had during the time she was allegedly involved with appellant and about whether anyone besides appellant could have impregnated her at that time, but did not permit appellant to bring up the subsequent pregnancy because it was not relevant and could cause the jury to Acast moral judgments as opposed to judgments on the law and the facts of this case.@
A primary interest secured under the Confrontation Clause[2] is a criminal defendant=s right of cross-examination over all matters reasonably calculated to expose the jury to facts from which they can draw inferences regarding the accuracy and truthfulness of a witness=s testimony, including the witness=s motivation for testifying and other potential biases.[3] In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid, among other things, prejudice, confusion of the issues, and the injection of cumulative or collateral evidence. Id.
Appellant=s brief does not explain how the subsequent pregnancy is probative of whether the other person also committed the assault for which appellant was charged, and cites no other evidence supporting the contention that the charged assault was committed by anyone other than appellant, let alone the person who fathered the later pregnancy. Nor does appellant=s brief provide any other support for his bias argument that would raise it above rank speculation. Moreover, appellant asked the complainant whether: (1) she knew the other person at the time she was allegedly assaulted by appellant; (2) that person had been her boyfriend at that time; and (3) this trial was Aabout trying to protect@ the other person. Additionally, during closing argument, appellant=s trial counsel specifically referred to his cross-examination of the complainant regarding the other person and reminded the jury that there was someone else who may have had access to her. Under these circumstances, appellant=s first issue fails to demonstrate that it was not within the trial court=s discretion to deny cross-examination regarding the subsequent pregnancy. Therefore, it is overruled.
Ineffective Assistance
Appellant=s second issue contends that he received ineffective assistance of counsel by his trial counsel not only failing to make a closing argument during the punishment phase, but declining the opportunity in a way that suggested contempt for the jury: AYour Honor, we have nothing to say to this jury at this stage.@[4]
A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, __ U.S. __, 125 S. Ct. 872 (2005). Counsel has wide latitude in deciding how best to represent a client and deference to counsel=s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategies at that stage, including foregoing jury argument altogether. Yarborough, 540 U.S. at 6. Finally, without a specific demonstration of prejudice supported by the record, we cannot find ineffective assistance of counsel. See Bone v. State, 77 S.W.3d 828, 837 (Tex. Crim. App. 2002).
In this case, appellant contends that jury argument was particularly important for mitigating his punishment because: (1) the sexual relationship between appellant and the complainant was consensual[5] and the complainant did not want appellant punished; (2) appellant was from another culture where sexual mores may well be different; (3) appellant had no history of this type of behavior; and (4) regardless of the sentence, appellant must register as a sex offender for life.
However, the first two of the foregoing facts, if argued, may not only have had no beneficial effect on the jury=s assessment of punishment, but might well have had a negative effect. As to the third, appellant=s lack of documented history of this type of behavior may also have been of little benefit in light of the evidence of his repeated assaults on the complainant, the evidence that he wanted her to abort the fetus to keep him from going to jail, and his previous conviction for burglary of a habitation with intent of aggravated assault. Regarding the fourth consideration, no such information was provided in the jury charge, and appellant has cited no authority that any such argument of law outside the charge would have even been permissible, let alone effective. Lastly, the thirty year sentence imposed by the jury, being in the low end of the punishment range of fifteen years to life imprisonment[6] fails to support a claim of ineffective assistance of counsel. Under these circumstances, we have no basis to conclude that counsel=s failure to present closing argument at punishment was below an objective standard of reasonableness or that, had closing argument been presented, there is a reasonable probability that the jury would have assessed a shorter sentence. Therefore, appellant=s second issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed January 17, 2006.
Panel consists of Justices Fowler, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty and assessed punishment at 30 years confinement.
[2] See U.S. Const. amend. VI; Tex. Const. art. 1, ' 10.
[3] Davis v. Alaska, 415 U.S. 308, 315-18 (1974); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); Hoyos v. State, 982 S.W.2d 419, 420-21 (Tex. Crim. App. 1998).
[4] Appellant argues that this statement in and of itself shows contempt for the jury. However, nothing in our record supports this contention. While we may speculate that this statement was made in a contemptuous manner, ineffective assistance of counsel claims must be firmly founded in the record. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004), cert. denied, __ U.S. __, 125 S. Ct. 872 (2005).
[5] Aggravated sexual assault of a child under 14 does not require that the offense occur without the “consent” of the child. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(I), (a)(2)(B) (Vernon 2005).
[6] Because appellant had been convicted of a prior felony, the range of punishment for this offense was 15 years to life imprisonment. See Tex. Penal Code Ann. ' 12.42(c)(1) (Vernon 2005).