COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00006-CR
EX PARTE
RAPHAEL JOHN DONATO
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. C-396-010452-1190374-AP
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MEMORANDUM OPINION 1
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Appellant Raphael John Donato was convicted of indecency with a child,
imposition of his ten-year sentence was suspended, and he was placed on ten
years’ community supervision. He appealed his conviction, and his conviction
was affirmed on appeal. 2 He then filed an application for writ of habeas corpus in
1
See Tex. R. App. P. 47.4.
2
Donato v. State, No. 02-11-00313-CR, 2014 WL 1704115, at *1, *15 (Tex.
App.—Fort Worth Apr. 30, 2014, pet. ref’d) (mem. op., not designated for
publication).
the trial court pursuant to article 11.072 of the code of criminal procedure, 3
contending that his conviction was the result of ineffective assistance of his trial
counsel, who had died after the trial. After a hearing, the trial court denied
habeas relief, adopting the State’s amended proposed findings of fact and
conclusions of law. Appellant timely appealed. Because the trial court did not
clearly abuse its discretion by denying habeas relief, we affirm the trial court’s
order.
FACTS AND PROCEDURAL HISTORY
At Appellant’s trial, the complainant testified that a light shone from outside
the window, that the TV box had an illuminated digital clock that reflected off the
mirror, that she wore glasses, and that she talked to Appellant when she
awakened to him touching her inappropriately. Appellant’s daughter testified that
her bedroom blinds were closed but that lights sometimes shone through the
blinds and that her bedroom was dark that night.
After trial counsel suggested that Appellant had had no opportunity to
sexually assault the complainant because at the time of the alleged offense, she
was asleep in the same bed as his daughter, who was a light sleeper, the trial
court held that the defense had opened the door to the testimony of Appellant’s
former stepdaughter that he had molested her more than a thousand times when
3
Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015).
2
she lived with him. The trial court gave the jury a limiting instruction, instructing
them to consider that evidence only in regard to opportunity.
A single text message of the complainant’s was introduced at trial. Trial
counsel argued that the State had committed prosecutorial misconduct for failing
to provide the defense all of her text messages. Additionally, the complainant
reported at trial that she had been told that she might have post-traumatic stress
disorder (PTSD) and testified that the sexual assault had “definitely very much
affect[ed] (her) life.” Trial counsel successfully excluded the evidence of the
complainant’s diagnosis, which included major depressive disorder without
psychosis, generalized anxiety disorder without panic, and moderate PTSD.
Appellant also testified at his trial. The State repeatedly asked him his
opinion of the complainant’s veracity. Although trial counsel objected once, he
did not preserve his complaint regarding this line of questioning. Then the State
argued in closing argument that the jury would have to convict Appellant unless
they found that the complainant was lying.
Appellant argued in his application for writ of habeas corpus and in the writ
hearing before the trial court that he was entitled to a new trial because he was
improperly represented at trial. 4 He argued that trial counsel’s actions
constituting ineffective assistance included (1) opening the door to an otherwise
4
See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984).
3
inadmissible extraneous offense; (2) failing to object to the State’s eliciting
testimony regarding the complainant’s veracity; and (3) failing to investigate,
preserve, and present exculpatory evidence (focusing on the complainant’s text
messages and mental health records and the bedroom in Appellant’s own home).
Appellant also argued that even if each act taken alone did not constitute
ineffective assistance, cumulatively, they did amount to ineffective assistance of
counsel. Because trial counsel had died by the time Appellant filed his
application for writ of habeas corpus, trial counsel could not contest the
accusations of ineffectiveness. The defense investigator did file affidavits
discussing his work and his contact with trial counsel.
In eighty-seven findings of fact and twenty-nine conclusions of law, the trial
court essentially concluded that trial counsel’s actions and failures to act were
reasonable trial strategy and that Appellant did not sustain his burden of proving
ineffective assistance.
THE LAW
Standard of Review
In general, a trial court’s ruling in a habeas proceeding should not be
overturned absent a clear abuse of discretion. 5 We are to evaluate whether the
trial court abused its discretion by determining whether the trial court acted
5
Ex parte Jessep, 281 S.W.3d 675, 678 (Tex. App.—Amarillo 2009, pet.
ref’d).
4
without reference to any guiding rules or principles. 6 In doing so, we view the
evidence in the light most favorable to the trial court’s ruling. 7
Proving Ineffective Assistance of Counsel
An applicant for habeas corpus relief has the burden of proving ineffective
assistance of counsel by a preponderance of the evidence. 8 To demonstrate
ineffective assistance of counsel, an applicant must show that (1) his counsel’s
representation fell below an objective standard of reasonableness and (2) but for
counsel’s deficiency, the result of the proceeding would have been different. 9 A
reviewing court analyzes claims of ineffective assistance under the “totality of the
representation” standard. 10 First, the reviewing court examines an applicant’s
allegations of deficient performance and decides whether trial counsel’s actions
6
Id.
7
Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006)
(holding court of appeals was to review facts in light most favorable to trial court’s
ruling even when no witnesses testified and all evidence was submitted in written
affidavits); State v. Wilson, 288 S.W.3d 13, 16 (Tex. App.—Houston [1st Dist.]
2008, pet. granted) (applying standard of review to article 11.072 writ), aff’d, 324
S.W.3d 595 (Tex. Crim. App. 2010).
8
Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995), cert.
denied, 517 U.S. 1106 (1996).
9
Ex parte McFarland, 163 S.W.3d 743, 751–52 (Tex. Crim. App. 2005)
(relying on Strickland, 466 U.S. at 687, 104 S. Ct. at 2064); Ex parte Jannereth,
No. 02-13-00498-CR, 2013 WL 6567908, at *1 (Tex. App.—Fort Worth Dec. 12,
2013, pets. ref’d) (mem. op., not designated for publication).
10
Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004).
5
or omissions were “constitutionally deficient.” 11 If the reviewing court decides
that trial counsel’s conduct was constitutionally deficient, it then determines
whether counsel’s specific acts or omissions, in their totality, prejudiced the
applicant’s defense. 12
ANALYSIS
Opening the Door to Inadmissible Evidence
Appellant initially complained in his application that trial counsel committed
ineffective assistance by opening the door to an otherwise inadmissible
extraneous offense. At Appellant’s trial, trial counsel argued that Appellant had
no opportunity to assault the complainant because she was asleep in bed with
two other girls and he was in bed with his wife, who would have noticed that he
was missing. 13 Trial counsel presented testimony that Appellant’s daughter was
a light sleeper and would have awakened if he had inappropriately touched the
girl who was in bed with her. 14 Trial counsel also presented testimony that
Appellant’s wife did not sleep that night and would have known if he had left the
bed because she was with him for all but five seconds. 15
11
Id.
12
Id.
13
Donato, 2014 WL 1704115, at *3–4.
14
Id. at *4.
15
Id.
6
In response, the State offered evidence that Appellant had inappropriately
touched his former stepdaughter years before the date of the alleged offense on
trial. 16 Trial counsel had received evidence revealed in discovery of Brady 17
material that Appellant’s former stepdaughter had recanted her statements to
Child Protective Services (CPS) regarding the sexual abuse. At trial, however,
she again claimed that her statements to CPS were true. Trial counsel cross-
examined her about her intent to retract her statement and her changing her
mind only after being “threatened” by the State. He also cross-examined her on
the fact that only after the allegations were made in the instant case did she first
report to authorities the sexual abuse that she contended had occurred fifteen
years earlier.
An applicant must overcome the presumption that, under the
circumstances, the challenged action could be considered sound trial strategy. 18
Trial counsel’s decision to challenge Appellant’s opportunity to commit the
offense and to attack the credibility of the former stepdaughter does not appear
to be unreasonable trial strategy. Nor did Appellant suggest in his application
another, and sounder, defense that trial counsel could have raised that would
16
Id. at *5–6.
17
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
18
Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986); Ex parte Irwin,
No. 02-09-00282-CR, 2009 WL 3720176, at *3 (Tex. App.—Fort Worth Nov. 5,
2009, pet. denied) (mem. op., not designated for publication).
7
have had a greater chance of success. Considering the entire record, we hold
that the trial court did not abuse its discretion by holding that trial counsel’s
decision to present the “lack of opportunity” defense was the result of reasonable
trial strategy and not deficient performance.
Failure to Object to Improper Questions of Complainant’s Veracity
As to Appellant’s contention that trial counsel committed ineffective
assistance by failing to timely object to the State’s questions regarding
Appellant’s opinion of the truthfulness of the complainant’s testimony, the State
argued in its response to Appellant’s application that, because of trial counsel’s
death, there was no evidence of what he was trying to accomplish. The State
also pointed out that trial counsel made vociferous objections during the
complainant’s testimony, but his not timely objecting to the State’s questioning of
Appellant about the complainant’s veracity allowed Appellant to express his
opinion that the complainant was lying. The State finally argued that there was
no evidence that the decision not to object was not sound trial strategy.
While questioning a witness about the veracity of another witness is not
proper, 19 the failure to object to inadmissible testimony can constitute a sound
19
Williams v. State, 17 S.W.2d 56, 58 (Tex. Crim. App. 1928); see also
Cross v. State, Nos. 02-02-00404-CR, 02-02-00405-CR, 2003 WL 22674776, at
*7 (Tex. App.—Fort Worth Nov. 13, 2003, pet. ref’d) (not designated for
publication).
8
and plausible trial strategy. 20 We therefore hold that the trial court did not abuse
its discretion by concluding that Appellant did not meet his burden of proving
deficient performance regarding trial counsel’s failure to object.
Pretrial Investigation and Exculpatory Evidence
Appellant’s third area of complaint concerned the extent of trial counsel’s
pretrial investigation and his alleged failure to preserve and present alleged
exculpatory evidence. As Appellant pointed out in his application, the trial was a
swearing match between the complainant and him. He argued that further
investigation would have undermined the complainant’s credibility and her ability
to identify him as her attacker because of poor lighting. The trial court addressed
the sufficiency of trial counsel’s investigation of the complainant, including her
phone, school, and counseling records, as well as his investigation of the lighting
in the room of Appellant’s home where the sexual assault allegedly occurred.
The trial court also addressed trial counsel’s presentation of such evidence. The
trial court held that Appellant failed to prove that the outcome of trial would have
been different had trial counsel investigated any of these areas more or had he
presented more evidence in these categories.
Although trial counsel has an obligation to make reasonable investigation
and reasonable decisions regarding the investigation, there is no evidence in the
20
See Ahmadi v. State, 864 S.W.2d 776, 783 (Tex. App.—Fort Worth 1993,
pet. ref’d).
9
record before us that trial counsel failed to do so. 21 Trial counsel is not required
to investigate every conceivable line of evidence, no matter how unlikely the
effort would be to assist the defendant. 22 Applying the appropriate standard of
review, we hold that the trial court did not abuse its discretion by holding that
Appellant failed to sustain his burden to prove deficient performance.
No Cumulative Prejudice
Finally, Appellant argued in his live habeas application that even if the trial
court should conclude that, individually, none of the alleged acts of ineffective
assistance mandated relief, in its totality, trial counsel’s performance so
prejudiced Appellant that it deprived him of a fair trial, requiring habeas relief.
Because Appellant did not meet his burden of proving that he received deficient
counsel under the first Strickland prong as to any of the allegations or as to the
totality of counsel’s performance, we overrule this issue. 23
CONCLUSION
Having overruled all of Appellant’s complaints, we affirm the trial court’s
order denying habeas relief.
21
See Conrad v. State, 77 S.W.3d 424, 425 (Tex. App.—Fort Worth 2002,
pet. ref’d); Irwin, 2009 WL 3720176, at *3.
22
Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 2541 (2003); Irwin,
2009 WL 3720176, at *3.
23
See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Hall v. State, No. 02-
09-00213-CR, 2010 WL 4570035, at *8 (Tex. App.—Fort Worth Nov. 4, 2010, no
pet.) (mem. op., not designated for publication).
10
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 18, 2016
11
Ex Parte Raphael John Donato
Combined Opinion