Opinion issued April 28, 2011
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-09-00886-CR
01-09-00887-CR
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Ricky Lee Stroble, Appellant
V.
The State of Texas, Appellee
On Appeal from the 506th District Court
Waller County, Texas
Trial Court Case Nos. 12,326, 12,777
MEMORANDUM OPINION
Ricky Lee Stroble pleaded guilty to the offenses of aggravated sexual assault of a child younger than 14 years of age[1] and indecency with a child.[2] After the preparation of a pre-sentencing investigation report, the trial court held a hearing on punishment and then sentenced Stroble to confinement for 99 years for the aggravated sexual assault charge and 20 years for the indecency with a child charge. In his sole issue, Stroble contends that his trial counsel rendered ineffective assistance during the punishment phase of his trial. We conclude that trial counsel did not render ineffective assistance. We affirm.
Background
Stroble lived on the same property that his ex-wife Melissa, her fiancé Scott, Scott’s 13- and 15-year-old daughters, and Melissa’s nine-year-old daughter, Jane Doe lived on, but in a separate residence. Melissa discovered a videotape in Stroble’s trailer that depicted Stroble engaged in sexual contact with a number of females. The videotape also showed Scott’s 13-year-old daughter taking a shower in the bathroom of Stroble’s trailer. The recording appeared to be made through holes in the wall of the shower stall. Scott provided the videotape to the Waller County Sheriff’s Office.
Scott’s 15-year-old daughter told the Sheriff’s Office investigator that they had discovered a camera hidden in Stroble’s bathroom connected to a television in the living room. Melissa told the investigator that Stroble kept child pornography on his computer and other storage devices. After officers obtained a search warrant, they seized computers, computer disks, storage media, cameras, videotapes, and disks from Stroble’s trailer.
After his arrest, Stroble admitted that images of child pornography were located on some of the storage media. Stroble subsequently pleaded guilty to aggravated sexual assault of child younger than 14 years of age and indecency with a child.
During the punishment phase, Waller County Sheriff’s Office Deputy Brian Cantrell summarized his investigation. He specifically testified that Stroble admitted that he had photographs of “children under the age of 18” on his computer, but claimed that he had tried to keep his actions within the law. Cantrell identified Stroble in some of the photographs.
Lannes Hillboldt, an officer with the Attorney General’s Office, testified that he examined the computers and other storage devices for the State. Through Hillboldt, the State introduced 71 photographs and drawings taken from the computers and other storage devices seized from Stroble’s trailer. Some drawings depicted sexual acts involving children. Some photographs depicted child pornography and others showed Stroble nude. Some of the photographs are of Melissa’s nine-year-old daughter, Jane Doe, including images of her genitals. Other images show Stroble engaging in sexual contact with young females, including Jane Doe.
An inmate in the Waller County jail testified that Stroble said he had paid a girl $50 to allow him to photograph her in the shower. Scott’s 15-year-old daughter testified that on one occasion Stroble paid her $50 to take off her top for a video recording of her. When she saw Stroble watching the recording, he offered her $150 to masturbate him.
Lisa Bourgoyne, who worked at the Children’s Assessment Center of Harris County, testified to the results of her interview with Jane Doe. Bourgoyne testified that Jane Doe described numerous instances of Stroble photographing her nude. She also described several instances where Stroble sexually assaulted her. She remembered the photographs being taken and described those incidents in a straightforward manner. In contrast, she described the sexual assaults as occurring when she was sleeping or dreaming. Bourgoyne explained that that type of dissociation was common for abuse victims and consistent with post-traumatic stress. On cross-examination, Bourgoyne conceded that she referred to Stroble’s sexual activities as “sexual addictions” in her report. Stroble’s counsel also attempted to suggest that treatment programs were available for sexual addictions, but Bourgoyne testified that she did not know if a successful treatment program was available for sex offenders.
The defense called Stroble, who described a number of events in his life to demonstrate his difficult childhood. After his mother died when he was three, he was adopted by relatives. While in their care, he was sexually abused by a babysitter. After only two or three years of public school, he was placed at a boys’ ranch in San Marcos. He again experienced sexual abuse at the boys’ ranch. He testified that by this point he had been conditioned to view such sexual conduct as normal, and therefore he did not report the abuse. By age 14 he had left the ranch and was working.
At age 18, Stroble was charged with indecency with a child. Stroble testified he only “made out” with a girl at a swimming pool. Stroble was convicted and placed on probation for ten years. He testified that his probation did not include any courses or counseling. His probation was revoked when he was again charged with indecency with a child. Stroble was again convicted and then sentenced to six years in prison.
After his release from prison, Stroble was introduced to his ex-wife Melissa shortly before she gave birth to Jane Doe. Stroble testified that he was first introduced to pornography when Melissa showed him photos of her at age 15 and her friend showed him images of young girls. Stroble and Melissa began taking nude photos of each other and Melissa’s friends.
Stroble admitted to the offenses alleged against Jane Doe and to other occasions when he sexually assaulted her, including oral and anal sex and sexual intercourse. Stroble also admitted to having traded child pornography online but stated he had not sent any pictures of Jane Doe. Stroble stated that he had a sex addiction and wanted medication or other treatment to control the addiction.
In pronouncing sentence, the trial court stated it did not know if Stroble’s claimed sexual addiction was treatable. The trial court assessed 99 years confinement for the sexual assault of a child and 20 years for the indecency with a child.
Standard of Review
A two-pronged test determines issues of ineffective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668, 687–94, 104 S. Ct. 2052, 2064–68 (1984). To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Id.; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mitchell, 68 S.W.3d at 642. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Allegations of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellant must prove ineffective assistance by a preponderance of the evidence, overcoming the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance or might reasonably be considered sound trial strategy. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). The record on direct appeal in ineffective assistance of counsel cases rarely provides the reviewing court an opportunity to conduct a fair evaluation of the merits. Randon v. State, 178 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2005, no pet.). We cannot speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy. See Wood v. State, 260 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
In rare cases, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). These rare cases are limited to occasions when no reasonable attorney could have made such a decision. Weaver v. State, 265 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance or trial strategy. Robertson, 187 S.W.3d at 482–83. Isolated instances of a failure to object to inadmissible argument or evidence do not necessarily render counsel ineffective. See id. at 483.
Ineffective Assistance of Counsel
In his sole issue, Stroble argues that he received ineffective assistance of counsel during the punishment phase of his trial because his trial counsel failed to (1) adequately prepare for trial; (2) object to hearsay testimony; and (3) object to improper argument from the State.
1. Failure to investigate
Stroble contends that his trial counsel rendered ineffective assistance by failing to seek an expert witness to evaluate Stroble and testify on his behalf and by failing to obtain records to support Stroble’s testimony. Specifically, Stroble asserts that his defense at punishment was based on the strategy of admitting “to the acts for which he was prosecuted but his conduct was the result of a combination of abuse he suffered as a child and adolescent and his addiction to sexual imagery and conduct.” Stroble also maintains that “the trial court did not refuse to consider Stroble’s argument that he suffered from a mental illness [but noted] an absence of any basis to determine whether the condition was treatable.” Stroble also contends that counsel did not obtain records supporting his testimony that his prior convictions for indecency with a child were “based on dating relationships rather than assaults on young girls.”
“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Randon, 178 S.W.3d at 101–02 (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003)). When the record is silent concerning counsel’s decisions after a less than complete investigation, we are unable to evaluate counsel’s strategy and have an insufficient record on which to determine whether counsel provided effective assistance. See id. at 102.
The record shows that in addition to his own pre-trial work, Stroble’s counsel not only retained a private investigator who investigated the case, but a “mitigation expert,” who investigated the case and interviewed Stroble, and a psychologist, who interviewed and evaluated Stroble. Counsel and his team apparently investigated Stroble’s claims; however, the record is silent concerning counsel’s decision, or the reasoning behind his decision, not to pursue the matter further through expert testimony. It is possible that he could have concluded that any further pursuit of the matter would have been futile, or possibly harmful to his client’s defense. Therefore, we cannot say, based on this record, that counsel was ineffective for failing to pursue the matter further. Id.; cf. Rivera v. State, 123 S.W.3d 21, 30–31 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (refusing to presume counsel’s performance may have been reasonable trial strategy at punishment phase when counsel failed to perform any investigation of appellant’s background and record showed that he was unfamiliar with appellant’s background and criminal history). Because Stroble has not met the first prong of Strickland concerning his counsel’s investigation, we do not address the second prong. See Rylander, 101 S.W.3d at 110.
2. Failure to object to hearsay
Stroble contends that trial counsel rendered ineffective assistance by failing to object to the hearsay testimony of Lisa Bourgoyne from the Children’s Assessment Center in Harris County. Specifically, Stroble contends that much of Bourgoyne’s testimony consisted of recounting hearsay statements made by Jane Doe concerning Stroble’s indecency and sexual assault. Stroble asserts that his counsel could have objected to Bourgoyne’s testimony as hearsay and that the exception for outcry statements did not apply.
Assuming that the trial court would have erred in overruling a hearsay objection to Bourgoyne’s testimony,[3] we cannot determine on the record before us that counsel was deficient in not objecting. As acknowledged in Stroble’s brief, it appears that trial counsel’s strategy during the punishment phase was for Stroble to admit he had committed the conduct charged in the indictments and rely on evidence of his difficult childhood and illness or addiction as mitigating factors. By this stage of the trial, he had already pleaded guilty. Stroble also took the stand and admitted to the same conduct that Bourgoyne recounted. Because the record is silent concerning trial counsel’s reason for not objecting to Bourgoyne’s testimony, we cannot speculate to deem his performance deficient. See Wood, 260 S.W.3d at 148. Furthermore, Stroble testified to the assault and indecency with Jane Doe; when hearsay evidence is improperly admitted, but the same facts are proved by other admissible evidence, no reversible error occurs. Bryant v. State, 282 S.W.3d 156, 163 (Tex. App.—Texarkana 2009, pet. ref’d) (citing Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986)). Because Stroble has not met the first prong of Strickland concerning the failure to object to hearsay, we do not address the second prong. See Rylander, 101 S.W.3d at 110.
3. Failure to object to improper argument
Stroble contends that he was provided with ineffective assistance of counsel because his counsel did not object to portions of the State’s closing argument in which the prosecutor stated his personal opinion of Stroble’s credibility; referred to Stroble as “evil” and “despicable”; maintained that “no mitigation evidence was presented;” and stated that recidivism rates in sex offender programs are “horrendous,” when no evidence supported that statement. The following excerpts are most of the State’s closing argument, with the portions Stroble complains of on appeal italicized.
. . . . I believe that the comments that have come from Mr. Stroble are patently unbelievable. I believe that he is nothing more than an individual who is trying to save his own skin and that you cannot take anything he says at all as being the truth; and this whole idea that he would suggest that he is some kind of a sick individual, that he is some kind of deviant sexual person, I think is unfortunate because we have this idea that because somebody is sick that they should be availed of certain treatments. I’m not saying that Mr. Stroble is sick at all. My position, the State’ position is Mr. Stroble is not sick. He is evil and he has perpetrated the most egregious crimes against children that’s envisioned by the State; and he’s not done it once, but he has done it many times. So for him to get up here before this court and say that, “well I just didn’t know it was wrong until I was 24 years old; I never received any treatment,” is a patently ridiculous and absurd and I think insulting thing to represent to this court.
After Stroble’s counsel presented closing argument, the State responded as follows:
[Bourgoyne] has never seen a sex offender program, now she’s not an expert obviously, that has been successful; and I think from an anecdotal point of view we can say the same thing. We have lots of programs that are treating sex offenders, but we have never, ever seen any kind of data that says any of it is successful. It’s sort of a garden sort of industry right now. We say, we’ve got to do something with these people. Let’s put them in a program, let’s give them some treatment; but we’ve never, ever seen any results from that. And I think the court is well aware, if you take judicial notice, that the recidivism rate in these programs is horrendous. I’m not going to give you percentages, but they are great. They don’t work. So if we are to decide that we are going to put Mr. Stroble in some kind of program, then we are setting ourselves up for more problems. The only way to deal with Mr. Stroble is to put him in the penitentiary for the rest of his life.
. . . .
There is no mitigating evidence that’s been presented to you, Your Honor. You know, he shows this little picture here of the boy’s ranch. There’s never been any suggestion other than Mr. Credibility, Mr. Stroble, that these things were -- that there was any kind of sexual abuse, no records, no arrests, no news articles, all we have is the word of Mr. Stroble, and that’s not very credible.
. . . .
I have to hand it to [Scott’s daughters], here. . . . They have taken their time to come out here and to testify and to sit through this and to tell some things they’re not very proud of, and I don’t blame her for that; but she was a kid, and she was under the influence of a person who is despicable and who was very, very adept at persuasion. She should have nothing to be ashamed of under those circumstances. She came out here and she told the story the way it was to benefit this court so you would have all the information that was available.
Assuming Stroble’s trial counsel should have objected to these arguments, Stroble must still meet the second prong of Strickland to receive relief. As noted above, to prevail on the second prong of Strickland, an appellant must show a reasonable probability that the result of the proceeding would have been different but for counsel’s ineffective assistance, i.e., a probability “sufficient to undermine confidence in the outcome.” See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mitchell, 68 S.W.3d at 642. “An appellate court will not reverse a conviction for ineffective assistance of counsel at the punishment stage unless the appellant shows prejudice as a result of deficient attorney performance.” Rivera, 123 S.W.3d at 32. “To assess prejudice, ‘we reweigh the evidence in aggravation against the totality of available mitigating evidence’ as indicated by the record as a whole.” Id. (quoting Wiggins, 539 U.S. at 534, 123 S. Ct. at 2542).
The evidence supporting the trial court’s sentences was overwhelming. Stroble pleaded guilty to indecency with a child and aggravated sexual assault of a child. The evidence also showed he made a videotape of Scott’s 13-year-old daughter when she was taking a shower. Stroble’s computer had 71 images, including child pornography and drawings depicting sexual acts with children. The images also showed nine-year-old Jane Doe’s genitals and Stroble engaging in sexual contact with children, including Jane Doe. Stroble paid Scott’s 15-year-old daughter to make a recording partially nude. Later, while watching the recording, he offered her $150 to masturbate him. Stroble also admitted to other sexual assaults including sexual intercourse and oral and anal sex with Jane Doe. Additionally, Stroble had earlier pleaded guilty to indecency with a child and received community supervision. However, he failed to take the opportunity provided by community supervision and again committed indecency with a child and was sentenced to prison.
Although the trial court imposed the maximum sentence on the indecency with a child charge (20 years) and effectively imposed the maximum sentence on the aggravated sexual assault of a child charge, Stroble has not demonstrated a reasonable probability—i.e., a probability sufficient to undermine confidence in the outcome—that the trial court would have imposed a lesser sentence but for the State’s improper arguments. See Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009) (holding improper argument during guilt-innocence phase of trial did not result in prejudice to defendant because evidence of defendant’s guilt was extremely strong). [4]
Stroble argues that “[b]ecause [he] was sentenced to the maximum term of imprisonment on each charge, there is a reasonable probability the outcome would have been different [i.e., he would have received a lesser sentence] had counsel’s performance not been deficient.” However, Stroble’s conclusion does not follow from his premise. As noted above, not only did Stroble plead guilty to the offenses for which he was charged, he admitted to committing several other egregious acts. More importantly, he had already received a sentence of community supervision for a prior indecency with a child offense, failed to complete community supervision, and had it revoked. The trial court had evidence before it that Stroble is not likely to be rehabilitated. Thus, our confidence that the trial court would not have imposed a lesser sentence is not undermined. See Ex parte Lane, 303 S.W.3d at 712.
We overrule Stroble’s sole issue.
Conclusion
We affirm the judgments of the trial court.
Harvey Brown
Justice
Panel consists of Justices Jennings, Higley, and Brown.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2010).
[2] See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2010).
[3] See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (“When an ineffective assistance claim alleges that counsel was deficient in failing to object to the admission of evidence, the defendant must show, as part of his claim, that the evidence was inadmissible.”).
[4] Prior cases from the Texas Court of Criminal Appeals applied presumptions in bench trials that the trial court did not consider improper argument or inadmissible evidence. Juarez v. State, 439 S.W.2d 346, 347 (Tex. Crim. App. 1969). Although it did not mention the former presumption, the Texas Court of Criminal Appeals expressly overruled the latter. Gipson v. State, 844 S.W.2d 738, 740–41 (Tex. Crim. App. 1992). Specifically, the court stated, “The promulgation of Rule 81(b)(2) implicitly voided the presumption test, and we now expressly do so.” Id. at 741. Rule 81(b)(2) stated, “If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Id. at 740. The current harm rule, Rule 44.2 (“Reversible Error in Criminal Cases”), is similar to former Rule 81(b)(2) and states,
(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
Tex. R. App. P. 44.2.
While the rules no longer treat as harmless all errors made in a non-jury trial, that does not mean we cannot consider the fact that the judge was the factfinder. The trial judge was aware of the difference between argument based on evidence and argument without any evidentiary support.
We also note that the statement that recidivism rates in sex offender programs are “horrendous” and that the programs “don’t work” was made in a request that the court take judicial notice of these “facts.” The trial court did not, however, take judicial notice. Additionally, by requesting that the court take judicial notice, the State implicitly conceded that this argument was not supported by the evidence.