COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-309-CR
CLAUDE FREDERICK LANE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1 ON
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
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Pursuant to rule of appellate procedure 50, we have reconsidered our
previous opinion upon reviewing Appellant Claude Frederick Lane’s petition for
discretionary review.2 W e withdraw our March 11, 2010 opinion and judgment and
substitute the following.
1
See Tex. R. App. P. 47.4.
2
See Tex. R. App. P. 50.
A jury convicted Appellant of two counts of sexual assault, found the sexual
offender notices true, and assessed Appellant’s punishment at life imprisonment.
The trial court sentenced him accordingly. In three points, Appellant contends that
the trial court erred by admitting hearsay, that the procedure in returning the verdicts
at the guilt stage rendered them ambiguous and inconsistent, and that he was
deprived of effective assistance of counsel. Because we hold that the trial court did
not reversibly err and that Appellant has not met his burden of proving ineffective
assistance of counsel, we affirm the trial court’s judgment.
In his first point, Appellant contends that the trial court erred by admitting
hearsay testimony concerning statements made to a nurse by the complainant. To
preserve error, a party must continue to object each time the objectionable evidence
is offered.3 A trial court’s erroneous admission of evidence will not require reversal
when other such evidence was received without objection, either before or after the
complained-of ruling. 4
The nurse testified as follows,
Q. And what’s the first thing you do after you get her consent or
what’s—what’s the first thing you did after you got her consent?
A. The next thing that I do is I get their history. I have them tell me
in their words what happened.
3
Martinez v. State, 98 S.W .3d 189, 193 (Tex. Crim. App. 2003) (citing
Ethington v. State, 819 S.W .2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v. State,
991 S.W .2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999).
4
Leday v. State, 983 S.W .2d 713, 718 (Tex. Crim. App. 1998).
2
Q. W hat is the purpose of having them tell you what happened?
A. It’s so that we can form a nursing diagnosis so that we can
medically treat them. That way they’re—we know where to look
for injuries.
Q. And you use this statement that people give you then for the
purposes of your medical treatment and diagnosis?
A. That’s correct.
Q. And also to know what to be looking for during your exam?
A. Correct.
Q. Okay. And what did she tell you with regards to her history in the
statement she made?
A. She said that—that he said there was puppies in the garage. My
eyes were not dilated enough to see in the dark. There was a
light at the end, in a room, and he said the puppies are in there.
[Defense Counsel]: I’m—I’m going to object to this, Your Honor.
If—if this—I’m going to object to it because it
wasn’t made—those statements weren’t
made—
THE COURT: I’m sorry, I can’t hear you.
[Defense Counsel]: I’m going to object to them as not made for
the purpose of diagnosis.
THE COURT: All right. That’s overruled.
THE W ITNESS: Okay. In the room, he said the puppies are—are in
there. He grabbed my neck and he let go and he
pulled my hair back. He pulled my arm backwards.
He made me undress myself. He told me to get on
my hands and knees and he pushed my face to the
floor and stuck his tongue on my butt and told me to
3
play with myself. Then he made me suck his dick.
Then he hit me in the face.
Then he opened up wine. He opened up the wine
with a screwdriver. He made me open it and told
me not to pull any shit with it. That he made me
stick my ass in the air and he grabbed me around
my mouth and I could not breath[e]. I was—he was
licking me everywhere and stuck his tongue in my
anal. He sucked my titties and made me suck his
dick. He made a phone call on my cell phone. I
was asking for cigarettes and wine so I knew where
he was. I kept asking so I knew where he was—I’m
sorry.
I kept asking questions. I grabbed my purse and
my phone and dove out the window when he went
outside the door.
Q. . . . Now, after she gives you this statement, what out of this
statement do you use to conduct your evaluation?
A. It would indicate where to look for injuries, like if she were
shoved or grabbed, anything like that. If—what contact there
was made, skin to skin, so that I would be able to look for
injuries, as well as collect evidence.
Q. Now, is there also—after they—after she gave you the patient
history, did you also go through kind of a laundry list of questions
for her?
A. Yes.
Q. And in that list of questions, did you ask if—if she—if—if the
Defendant performed oral sex on her?
A. Yes.
Q. And what did she indicate?
A. She said yes.
4
Q. And did you ask if she performed oral sex on the Defendant?
A. Yes.
Q. And what did she indicate?
A. She said yes.
Q. Did you ask her if he performed oral sex by contacting her anus?
A. Yes, I did.
Q. And what did she indicate?
A. She said yes.
Q. And did she also indicate that—that he had touched her genitals
and that she had touched his genitals?
A. Yes, she did.
Q. Did she indicate whether or not the Defendant ejaculated?
A. She said no.
....
Q. Did she describe for you where the assault had occurred?
A. Yes, she did.
Q. What did she tell you?
A. She said in the assailant’s mom’s garage. [Emphasis added.]
Appellant lodged only his initial objection and never asked for a running objection.
Further, as Appellant concedes, the nurse’s testimony regarding the complainant’s
5
statements was cumulative of the complainant’s own testimony. W e overrule
Appellant’s first point.
In his second point, Appellant contends that the trial court violated article
37.04 of the code of criminal procedure by sending the jury back to the jury room to
“redo” the verdicts. Article 37.04 provides,
W hen the jury agrees upon a verdict, it shall be brought into court by
the proper officer; and if it states that it has agreed, the verdict shall be
read aloud by the judge, the foreman, or the clerk. If in proper form and
no juror dissents therefrom, and neither party requests a poll of the jury,
the verdict shall be entered upon the minutes of the court. 5
But article 37.10(a) provides,
If the verdict of the jury is informal, its attention shall be called to it, and
with its consent the verdict may, under the direction of the court, be
reduced to the proper form. If the jury refuses to have the verdict
altered, it shall again retire to its room to deliberate, unless it manifestly
appear that the verdict is intended as an acquittal; and in that case, the
judgment shall be rendered accordingly, discharging the defendant. 6
And in Reese v. State, the following occurred:
The record reflects apparent confusion among the jurors as to
the verdict forms. Upon returning to the courtroom, the jury announced
they had reached a verdict. The trial court noticed that only the verdict
form in the sexual assault case had been signed by the jury; they had
neglected to return any verdict in the compelling prostitution case. The
trial court informed the jury that “You forgot to sign a verdict on one and
all the jury needs to go back in there a minute”. The jury again returned
from deliberation having found appellant “guilty” of the compelling
prostitution charge, but “not guilty” of the lesser included charge of
prostitution. The trial court admonished the jury as follows:
5
Tex. Code Crim. Proc. Ann. art. 37.04 (Vernon 2006).
6
Id. art. 37.10(a).
6
W ell, sir, I am going to ask you to go back in there
one more time and read the Court’s Charge with regard to
the offense of compelling prostitution and whether or not
you consider the lesser-included offense of prostitution. I
will have to ask that you go back there one more time.
W e note that appellant did not object to the jury being sent back
to deliberate at any time. 7
In affirming Reese’s conviction, the Texas Court of Criminal Appeals explained,
The second time the jury returned from deliberations, the trial judge
found the forms to be in conflict and insufficient. Due to this conflict,
the trial court not only had the power to send the jury back for further
deliberations but it was his duty to do so. Appellant did not object to the
jury being retired for further deliberation without any explanation from
the bench, nor did he request a jury poll at any point. Once an
unambiguous verdict for both offenses was returned, the trial court then
read the verdicts aloud.
W e hold that the trial judge was correct in sending the jury back
for further deliberation, and did not err in the procedure employed in
accepting the verdict. 8
Similarly, in the case before us, the following proceedings occurred:
THE COURT: All right. Everybody but the foreman can be seated.
And, Mr. Foreman, it’s my understanding the jury
has reached a verdict; is that correct?
THE FOREPERSON: Yes, Your Honor.
THE COURT: W as this unanimous by all members?
THE FOREPERSON: Yes, Your Honor.
7
Reese v. State, 773 S.W .2d 314, 316 (Tex. Crim. App. 1989).
8
Id. at 318 (citations omitted).
7
THE COURT: If you’ll present it to Ms. LaCroix, I’ll read it. You
may be seated. All right. Mr. Lane, let me ask you
to stand.
As to Count 1, we, the jury, find the Defendant
Claude Frederick Lane guilty of the offense of
sexual assault as charged in Count 1.
And Count Two, we, the jury, find the Defendant
Claude Frederick Lane guilty—
(A brief pause in proceedings.)
THE COURT: I’ve been informed by my bailiff that the foreman is
telling me that they signed the wrong—I’m sorry.
THE BAILIFF: Count 1 only.
THE COURT: W ell, let me send you back to the jury room and I
want y’all to redo your verdict forms and do them
correctly if you can.
Appellant did not object or request to poll the jury. After returning again from the jury
room, the jury returned unanimous verdicts of “not guilty” on Count One and “guilty”
on Counts Two and Three, maintaining their verdicts when polled. The verdict form
on Count One shows that the foreman signed both the guilty and the not guilty
verdicts, but the signature in the blank for the guilty verdict is crossed through.
Unlike the record in Hay, 9 a case on which Appellant relies, the record in the case
before us shows that the trial court received information from the foreman via the
bailiff that the verdict form on Count One was wrong. Further, while Appellant relies
on the trial court’s use of the plural “verdict forms” when sending the jury back to
9
Hay v. State, 472 S.W .2d 157, 160 (Tex. Crim. App. 1971).
8
correct the verdict on Count One, we are not prepared to hold based solely on that
language that the cautious trial court erred by giving the jury a chance to review all
of the verdicts before accepting them. Following Reese, we hold that the trial court
correctly sent the jury back for further deliberations and followed the correct
procedures in accepting the verdicts. 10 W e overrule Appellant’s second point.
In his third point, Appellant contends that he was denied effective assistance
of counsel by the election of the jury to assess punishment. To establish ineffective
assistance of counsel, Appellant must show by a preponderance of the evidence that
his trial counsel’s representation fell below the standard of prevailing professional
norms and that there is a reasonable probability that, but for counsel’s deficiency,
the result of the trial would have been different. 11 Appellant contends that after
defense counsel unsuccessfully fought to bar the State from questioning Appellant
about his prior rape conviction should he testify at the guilt phase, no strategy
supported the election of the jury for punishment, especially because that election
allowed the State to refer to the sex offender enhancement paragraphs at jury
10
See Reese, 773 S.W .2d at 318; see also Tex. Code Crim. Proc. Ann. art.
37.10(a).
11
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Salinas v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W .3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W .3d
808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W .2d 770, 770 (Tex.
Crim. App. 1999).
9
selection. Appellant did not raise ineffective assistance of counsel below. 12 Further,
he does not argue that the outcome of his trial would have been somehow different
had the trial court assessed his punishment. 13 Accordingly, Appellant has failed to
satisfy his burden of proving ineffective assistance of counsel. W e overrule
Appellant’s third point.
Having overruled Appellant’s three points, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 29, 2010
12
See Salinas, 163 S.W .3d at 740 (“In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind trial
counsel’s actions.”) (quoting Mallett, 65 S.W .3d at 63).
13
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Tex. Penal
Code Ann. § 12.42(c) (Vernon Supp. 2009) (providing in relevant part that a person
shall be imprisoned for life if convicted of sexual assault and having a previous
conviction for aggravated sexual assault).
10