No. PD-0756-15
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
__________________________________________________________________
CHARLES LAVOY ARRINGTON
Appellant
VS.
THE STATE OF TEXAS
Appellee
FOURTH COURT OF APPEALS CAUSE NO. 04-12-00430-CR
__________________________________________________________________
ON APPEAL FROM THE FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
__________________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
JORGE G. ARISTOTELIDIS
Tower Life Building
310 South St. Mary’s St., Suite 1830
San Antonio, Texas 78205
(210) 277-1906
July 24, 2015 jgaristo67@gmail.com
SBN: 00783557
ORAL ARGUMENT REQUESTED
IDENTITY OF JUDGE, PARTIES AND COUNSEL
A complete list of the names and addresses of all interested parties is
provided below so the members of this Honorable Court may at once determine
whether they are disqualified to serve or should recuse themselves from
participating in the decision in this case.
Complainant:
The State of Texas
Petitioner:
Charles Lavoy Arrington
Counsel for the Petitioner:
Mr. Jorge G. Aristotelidis
Tower Life Building
310 South St. Mary’s St., Suite 1830
San Antonio, Texas 78205
Counsel For the State:
Ms. Lauren Scott
Assistant District Attorney
Bexar County Justice Center
101 W. Nueva St.
San Antonio, Texas 78205
Trial Judge:
Honorable Sharon MacRae
Visiting Judge
187th District Court
Bexar County, Texas
ii
TABLE OF CONTENTS
PAGE(S)
IDENTITY OF THE JUDGE, PARTIES AND COUNSEL ii
INDEX OF AUTHORITIES iv
STATEMENT REGARDING ORAL ARGUMENT v
STATEMENT OF THE CASE vi
STATEMENT OF PROCEDURAL HISTORY vii
GROUND FOR REVIEW viii
ARGUMENT 1
PRAYER FOR RELIEF 13
CERTIFICATE OF SERVICE 14
CERTIFICATE OF COMPLIANCE 15
iii
INDEX OF AUTHORITIES
TEXAS COURT OF CRIMINAL APPEALS CASES:
Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015)…………..............vii,1
Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997)………………………..9,11
Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993)……………………7,10,11
TEXAS COURT OF APPEALS CASES:
Arrington v. State, 413 S.W.3d 106 (Tex. App. – San Antonio 2013)…vii,1,7,12,13
Arrington v. State, 2015 Tex. App. LEXIS 2529
(Ct. App. - San Antonio)(Mar. 18, 2015)(unpublished)……………….vii,8,9
Fuller v. State, 224 S.W.3d 823 (Tex. App.—Texarkana 2007, no pet.)…………10
Lane v. State, 257 S.W.3d 22, 27
(Tex. App.--Houston [14th Dist.] 2008, pet. ref’d)………………………...10
Long v. State, No. 2008 Tex. App. LEXIS 8885
(Tex. App.--Tyler Nov. 26, 2008, no pet.) (unpublished)………………….10
Moran v. State, 350 S.W.3d 240, 242-243 (Ct. App. San Antonio 2011)………….9
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001……………………...9
TEXAS RULES OF EVIDENCE:
Tex. R. Evid. 702…………………………………………………………………7,9
Tex. R. Evid. 608…………………………………………………………………...8
MISCELLANEOUS:
3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999))………………..9
APPENDIX Arrington v. State, 2015 Tex. App. LEXIS 2529
(Tex. App. San Antonio Mar. 18, 2015)
iv
STATEMENT REGARDING ORAL ARGUMENT
Appellant’s case presents an outrageous case of ineffective assistance of
counsel, whereby defense counsel wholly failed to object to trial testimony from
two State’s witnesses, one of whom gave her expert opinion about the truthfulness
of the complainant’s criminal accusations, and the other of whom gave lay
testimony that improperly bolstered the complainant’s credibility, such that
defense counsel’s omissions could not be justified as reasonable trial strategy, after
a review of the cold, appellate record. Because the prohibition against opinion and
bolstering testimony is well-settled by this Court’s jurisprudence, oral argument
would assist this Court in determining whether it should review Petitioner’s
ineffective assistance claim while on direct appeal, or require the Petitioner to
expend more resources and further delay the process, by seeking relief via the post-
conviction, habeas process.
v
STATEMENT OF THE CASE
On July 9th, 2012, jury selection began in the trial of Mr. Charles Lavoy
Arrington (Petitioner), who was charged with six counts of aggravated sexual
assault, and one count of indecency with a child by sexual contact, in the 187th
District Court of Bexar County, Texas, in San Antonio, Texas, before the
Honorable Sharon MacRae, visiting judge presiding. On July 13, 2012, Mr.
Arrington was convicted by the jury of five counts of aggravated sexual assault of
a child, and one count of indecency with a child by sexual contact. That same day,
he was sentenced by the trial court to 60 years on five of the six aggravated sexual
assault counts, and to 20 years for the indecency with a child by sexual contact
count, with all sentences running concurrent. Because the jury was unable to reach
a verdict on Count III, the court declared a mistrial.
vi
STATEMENT OF PROCEDURAL HISTORY
On August 14, 2013, the Fourth Court of Appeals of San Antonio reversed
Mr. Arrington’s conviction, and remanded for a new trial, via published opinion.
See Arrington v. State, 413 S.W.3d 106 (Tex. App. – San Antonio 2013).
On January 14, 2015, this Court reversed the Fourth Court of Appeals
decision, and remanded all remaining, unresolved appellate issues for its
consideration. See Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015).
On March 18, 2015, the Fourth Court of Appeals decided all remaining and
unresolved appellate issues, and affirmed Petitioner’s convictions. See Arrington
v. State, 2015 Tex. App. LEXIS 2529 (Tex. App. San Antonio Mar. 18, 2015)
(unpublished).
On May 21, 2015, the Fourth Court of Appeals denied Petitioner’s motions
for panel, and en banc rehearing.
Petitioner’s PDR is due to be filed Wednesday, July 22nd, 2015.
vii
GROUND FOR REVIEW
Whether the Petitioner’s allegation that his trial counsel rendered ineffective
assistance of counsel by completely failing to object to all of the expert and lay
testimony about the truth of H.A.’s allegations against Petitioner that was
presented by the State in its case in chief, was so outrageous as to eliminate any
reasonable trial strategy, and thus allow its consideration on direct appeal, without
the need to require Petitioner to expend additional resources and further delay, via
the post-conviction, habeas process?
viii
ARGUMENT
1. Posture of the Case:
At trial, the complainant (H.A.) made a number of sexual assault allegations
against the Petitioner. There was no medical, or other evidence presented in
support of these accusations, thus rendering the trial a “he said, she said” swearing
match between them. See Arrington v. State, 413 S.W.3d 106, 113 (Tex. App. San
Antonio 2013)(overruled on other grounds by Arrington v. State, 451 S.W.3d 834
(Tex. Crim. App. 2015)). With this backdrop, in its case in chief, the state
presented testimony from outcry witness Lisa Dawn McGinnis (McGinnis), and
from H.A.’s mother, Virginia Lee Johnson (Jenny). The following are excerpts of
their testimony, which is the subject of the Petitioner’s PDR:
2. Expert Opinion about H.A.’s Credibility from the State’s Outcry
Witness:
On direct examination, the state called McGinnis, the school counselor at
H.A.’s school, who was called as the outcry witness. McGinnis testified that she
had two conversations with H.A. at her school. Having learned of a rumor that
H.A. had stated that she was pregnant, she questioned H.A. about it. 3 RR 71.
When confronted with the rumor, H.A. “said, no, it was a misunderstanding that
she was just talking about, basically, where babies come from and her friends had
misunderstood her and at that point [McGinnis] believed her. It was a very short
interview,” adding that H.A. “handled herself very well.” 3 RR 72. When asked
1
what McGinnis’s “feeling” at the time of the conversation with H.A., she related
that she believed that “it was just a rumor…[t]hat some kids were talking about
how babies -- where babies come from.” 3 RR 73. McGinnis added that while the
conversation warranted a phone call about it to H.A.’s mother, McGinnis “didn’t
really feel like there was anything else to the information so [she] didn’t…make
any other phone calls at that point,” further elaborating that it was a “judgment call
somewhat on” her part “based on [her] experience and what [McGinnis has] seen
with other students.” 3 RR 73-74
Two days later, McGinnis had a second conversation with H.A., and
revisited the issues based on continuing rumors that she was pregnant, and this
time, that H.A. was pregnant with her father’s baby. 3 RR 74-75. It was during
this second interview that H.A. first alleged that the Petitioner had sexually
assaulted her. 3 RR 76-78.
McGinnis testimony was buttressed by her academic and professional
background. She testified that at the time of H.A.’s outcry, she worked at
Timberwood Park Elementary, and that she’d previously worked as a school
counselor for 11 years and in school administration for twenty-one years. She
added that she had a bachelor’s in early childhood education, a Master’s in
counseling, and a Ph.D. in counseling and supervision, and that she was a licensed
professional counselor, outside of her school counseling certification. 3 RR 70.
2
During McGinnis’s testimony, without any objections by the defense, the
prosecutor asked McGinnis questions relating to whether H.A.’s sexual assault
allegation was credible, specifically, McGinnis’s opinion about whether H.A. was
telling the truth:
Prosecutor: Now, did you ask any questions -- did you do anything to check
the veracity of her story?
McGinnis: I asked enough questions to make a decision about whether I
needed to report or not. Based on what she said, based on her
demeanor, based on the fact that I did not have any other
concerns with her behavior or academically, what I knew about
her at that point, I made enough -- got enough information to
make a decision about making a report. I was leaving that
school at the end of the year. This was the day before schooling
got out so I didn't –
Prosecutor: Hold on there one second. I guess what I want to ask you is:
You collected enough information to make a report.
McGinnis: Uh-huh.
Prosecutor: All right?
McGinnis: Yes.
Prosecutor: And clearly you made a report because you’re here today.
McGinnis: Yes.
Prosecutor: What did -- what details did you see that lent credibility to
her story that made you know that she was telling you the
truth?
McGinnis: I felt that she was telling me the truth based on the fact that
she had details, for example, what movie they were watching;
3
that her brother was playing PlayStation when it happened
when she was nine; that she could very much put herself in the
situation of what was going on exactly at that time.
Those were the things that made me feel like she was telling
the truth.
Prosecutor: Okay. Now, what told you that those were the important
factors?
McGinnis: Based on my experience that I’ve had with other students,
based on my educational experience. Those were the things
that I fell back on.
Prosecutor: So you were trained to look for these signs?
McGinnis: As a counselor, yes.
Prosecutor: All right. Have you had the occasion to deal with somebody
who made a false report?
McGinnis: Yes.
Prosecutor: Okay. Now, can you distinguish those instances, in general, to
this one? I mean, what did she do that might have happened
had she been given [sic] a false report?
McGinnis: Most of the time, not all the time, but most of the time when
students give a false report they generally will seek you out.
Haley did not seek me out. She did the seek out an adult. She
was actually telling another student, which my experience has
been that's a cry for help when you don’t know what else to do.
Most of the time the students who have made false reports
they’ve actually sought me out or told another adult. The first
time I talked to her she didn’t want to tell me. She was fearful
and that also made me feel like that this was a truthful
report.
***
4
Prosecutor: And does that mean that the person has a false memory? That
this is, you know, something that they just concocted?
McGinnis: No. It just means that, you know, like I said, with any of us, as
time goes by, you might remember things that you didn't
remember prior.
3RR 80-83 (emphasis by Appellant).
3. Lay Testimony About H.A.’s Truthfulness:
The State later called Virginia Lee Johnson (Jenny), H.A.’s mother. On
direct, the prosecutor asked Jenny whether she’d spoken to her daughter about the
sexual assault allegations. The following colloquy ensued:
Prosecutor: And has she, I guess, changed from her initial reaction of
talking about what happened?
Jenny: You mean -- not really, no. You mean, like personality?
Prosecutor: Yes. I mean, is she still fearful and embarrassed when she talks
about it?
Jenny: No but we don’t really talk about it all that much but I ask her
questions and she’s very honest with her answer and she’s
not - she doesn’t hide the answers. She tells me the truth.
Prosecutor: Okay. So do you generally initiate the conversations with her or
does she talk to you about what happened to her at her dad’s
house?
Jenny: She talks to me when we do talk about it.
Prosecutor: Now, have you ever talked with Haley about how serious what
happened to her is?
Jenny: Yes.
5
Prosecutor: And did you -- I mean, were you surprised when this first came
out?
Jenny: Yes.
Prosecutor: Why were you so surprised?
Jenny: Because I didn’t think this could happen.
Prosecutor: You didn't think this could happen to your daughter?
Jenny: Yes.
Prosecutor: Did you talk to Haley about the fact that police were going to
be involved and she was going to have to –
Jenny: Yes.
Prosecutor: -- follow through with that?
Jenny: Yes.
Prosecutor: Did you talk to her about how serious this was?
Jenny: Yes.
Prosecutor: Did you ask Haley if she was telling the truth?
Jenny: Yes.
Prosecutor: And what did she say to you?
Jenny: She said yes and she started crying.
3 RR 48-50 (emphasis by Appellant).
6
4. Impeachment of H.A.’s Testimony:
H.A.’s testimony was impeached by the prosecutor. On direct examination,
the prosecutor asked H.A., why she had “lied” to H.A.’s mother by failing to tell
her about the Appellant’s sexual assault, to which H.A. claimed that “her friends”
made her “do it.” See 3 RR 206-207.
5. State’s Closing Arguments:
During her closing arguments, the prosecutor argued that the Petitioner’s
guilt was substantiated by McGinnis’ testimony, as follows:
Ms. McGinnis has dealt with kids for 21 years. She told you that
generally they do make delayed outcries. She told you that when a kid
isn’t seeking out the adult to share this information that has a lot to
do with whether or not you’d want to believe them or how you put
things in perspective. Haley didn’t seek anybody out.
5 RR 35-36 (emphasis by Appellant).
6. Fourth Court of Appeals’ Decision:
On original submission, the Fourth Court noted that “the State asked the
school counselor, McGinnis, her opinion on the truthfulness of H.A.’s
accusations,” and that “the State concedes that McGinnis answered direct questions
on H.A.’s credibility and truthfulness.” See Arrington, 413 S.W.3d at 113. The
Court agreed that her opinion on H.A.’s truthfulness was not admissible. Id. (citing
Tex. R. Evid. 702; Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993)),
and noted that defense counsel did not object to their admission at trial. Id. at 114.
7
The Court also noted that “[t]he State also asked H.A.’s mother questions
about H.A.’s truthfulness,” and noted that “[t]he credibility of a witness may be
supported by evidence in the form of opinion, but the evidence may only refer to
character for truthfulness and evidence of truthful character is admissible only after
the character of the witness for truthfulness has been attacked.” Id. at 114 (citing
Tex. R. Evid. 608.)
However, after remand from this Court, the Fourth Court of Appeals
concluded that “[t]he above questioning occurred in the context of the State asking
McGinnis what made her believe H.A. enough to make an official report,” and “in
the context of her following up on the second rumor.” Arrington v. State, 2015
Tex. App. LEXIS 2529 *11-12 (Tex. App. San Antonio Mar. 18, 2015)
(unpublished). Acknowledging that “[d]uring cross-examination, defense counsel
asked McGinnis only a few questions,” it elaborated that “[its] review of the record
indicates defense counsel’s strategy in not objecting and conducting a limited
cross-examination may have been for the purpose of avoiding emphasizing the
matter before the jury…” Id. at *12.
As to Jenny’s bolstering testimony, the Court reasoned that “[t]he mother’s
comments were brief and somewhat vague as to the content of what H.A. said that
was ‘truthful,’” restating that its “review of the record indicates defense counsel’s
8
strategy in not objecting may have been for the purpose of avoiding emphasizing
the matter before the jury.” Id. at * 14.
The Court concluded that the Petitioner therefore “failed to satisfy his
burden of proving that there was no imaginable strategy for defense counsel’s
failure to object.” Id.
In determining whether trial counsel rendered ineffective assistance of
counsel, when the record contains no evidence of counsel‘s reasons for the
challenged conduct, the Court “‘will assume a strategic motivation if any can
possibly be imagined,’ and will not conclude the challenged conduct constituted
deficient performance unless the conduct was so outrageous that no competent
attorney would have engaged in it.” See Moran v. State, 350 S.W.3d 240, 242-243
(Ct. App. San Antonio 2011) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001) (quoting 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d
ed. 1999)). See also Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App.
1992)(“when a cold record clearly confirms no reasonable trial counsel could have
made [the complained of] trial decisions, to hold counsel ineffective is not
speculation.”).
To be admissible, expert testimony must “assist” the trier of fact. Schutz v.
State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (citing Tex. R. Crim. Evid. 702)
(other citations omitted). Expert testimony assists the trier of fact when the jury is
9
not qualified to “the best possible degree” to determine intelligently the particular
issue without the help of the testimony. Id. (citations omitted). But, the expert
testimony must aid -- not supplant -- the jury‘s decision. Id. Expert testimony does
not assist the jury if it constitutes “a direct opinion on the truthfulness” of a child
complainant‘s allegations. Id. (citing Yount v. State, 872 S.W.2d 706, 708 (Tex.
Crim. App. 1993)). See also Long v. State, No. 12-07-00256-CR, 2008 Tex. App.
LEXIS 8885, 2008 WL 5050099, at *4 (Tex. App.--Tyler Nov. 26, 2008, no pet.)
(noting that an expert may not testify that a witness is truthful.) (citing Yount, at
712) and Lane v. State, 257 S.W.3d 22, 27 (Tex. App.--Houston [14th Dist.] 2008,
pet. ref’d)). On original submission, the Fourth Court noted that, indeed, “the State
concede[d] that McGinnis answered direct questions on H.A.’s credibility and
truthfulness.” See Arrington, 413 S.W.3d at 113.
Likewise, efforts by Jenny to bolster the credibility of those allegations
(Fuller v. State, 224 S.W.3d 823 (Tex. App.—Texarkana 2007, no pet.) (allowing
the State to pre-emptively “rebut,” through lay opinion testimony, attacks on its
complaining witnesses solely on the basis of the cross-examination of that witness
was inconsistent with the Schutz finding that the defense does not “open the door”
for the same testimony by an expert by cross-examining H.A. herself.) (citing
Schutz, at 72)), are also prohibited by this Court’s precedent.
10
The Fourth Court’s focus on the “context” of the prohibited questions,
whether McGinnis was sufficiently convinced that H.A. told the truth, to justify
making an official report, is irrelevant. The focus is not on the context of the
opinion about H.A.’s credibility, but on the fact that the opinion was given, not
once, but repeatedly. As the outcry witness, McGinnis function was solely to
report about the sexual assault allegations, not to render a carefully crafted opinion
as to why she believed that H.A.’s allegations - the very heart of the prosecution’s
case – were true. As to the Court’s second observation, that defense counsel’s
failure to object and his conducting a limited cross-examination may somehow
have been strategy aimed at avoiding emphasizing the matter before the jury, this
completely misses the point. Failing to object to clear and deliberate calls for
opinion testimony about the credibility of the complainant’s sexual assault
allegations is not trial strategy, it is an abject failure to protect the jury’s province
as the sole judge of credibility.
It’s also difficult to accept the Fourth Court’s conclusion that, as to Jenny’s
testimony, her “comments were brief and somewhat vague as to the content of
what H.A. said that was ‘truthful.’” A review of the Jenny’s testimony leaves no
doubt that the subject matter about which Jenny believed H.A. to be truthful, to the
point of tears, were the sexual abuse allegations against the Petitioner.
11
At the time of trial, Yount and Schutz had been well-settled precedent for
over 18 and 14 years, respectively. Rather, the relevant inquiry is: how can defense
counsel sit by idly while the state carefully prepares and engages in a long, roundly
prohibited line of questioning, that repeatedly, and over the course of two
witnesses, produces devastating opinion testimony, constitute a reasonable trial
strategy? It doesn’t. Respectfully, the Fourth Court of Appeals has erred in failing
to identify defense counsel’s omissions as outrageous, ineffective assistance of
counsel.
Counsel’s ineffective assistance prejudiced the Petitioner, for the following
reasons:
1. H.A.’s credibility had already been compromised when none other than
the prosecutor confronted H.A. about why she lied when she first spoke
to McGinnis, which the Fourth Court noted in its first opinion. See
Arrington, 413 S.W.3d at 115, 117.
2. The trial was a classic he-said, she-said swearing match, without medical
or other evidence favoring the prosecutions case. Therefore, McGinnis
expert, and H.A.’s lay witness validation of H.A.’s accusations, unfairly
and decidedly tipped the scales in favor of a conviction;
3. The prohibited testimony was a far cry from an unexpected blurb which
could ostensibly be neutralized by defense counsel’s decision to not
revisit and re-emphasize the testimony before the jury. Rather, it was a
carefully crafted and effective question and answer colloquy between the
prosecutor and the two witnesses. Indeed, the prosecutor took all of the
liberties that defense counsel permitted her;
4. The prosecutor specifically emphasized and argued McGinnis’ opinion
about H.A. truthfulness in closing argument, and supported that opinion
12
by also discussing McGinnis’ expertise, which in the eyes of the jury,
fully qualified her to evaluate the truth of H.A.’s accusations;
5. The fairness of Petitioner’s trial was seriously hampered by the failure on
the part of the trial court (and, for that matter, defense counsel) to ensure
that a proper unanimity instruction was given in the case, which was
conceded error by the state during the Fourth Court’s original
consideration. See Id. at 113. While this Court ultimately determined
that the lack of a unanimity instruction would not, on its own, have been
sufficient to constitute Almanza error, thus reversing the Fourth Court’s
determination, it should, when combined with counsel’s outrageous
ineffective assistance, and the above enumerated factors, militate in favor
of a finding that that the Petitioner’s trial was fundamentally unfair, and
its result unreliable.
Lastly, the opportunistic role by the state in this case cannot be ignored.
During oral argument before this Court, on original submission, the undersigned
asked the Court to consider the State’s unclean hands in the trial process. Unlike
unobjected to hearsay, which retains is probative properties, truth opinions about a
complainant’s allegations are NEVER admissible. Sure, defense counsel’s
dereliction is well established, but it did not give the prosecutor a license to elicit a
wholly inadmissible line of questioning, in its quest, not, to do justice, but to
secure a conviction, a point eloquently noted by Justice Chapa in a separate,
concurring opinion. See Arrington, 413 S.W.3d at 119 (J. Chapa concurring)
(“…the trial court failed in its obligation to submit a charge that does not allow for
the possibility of a non-unanimous verdict…[a]nd the State failed in its primary
duty, which is not to convict, but to do justice, by failing to assure that the
convictions were constitutionally obtained.”). The state’s win-at-all-cost efforts in
13
opportunistically producing, introducing, and arguing inadmissible evidence to bag
a conviction in this case was clear prosecutorial misconduct. If this Court is
serious about maintaining the integrity of the trial process, it should grant PDR,
reverse the Petitioner’s conviction, and admonish the State about its ethical duties
at trial. Empty warnings in opinions that affirm convictions that are the product of
prosecutorial misdeeds, do little to bring about true reform.
PRAYER FOR RELIEF
WHEREFORE, the Petitioner respectfully requests that this Court grant his
PDR, order the necessary briefing, reverse the judgment of the Fourth Court of
Appeals, and remand this case for a new trial.
Respectfully submitted,
Jorge G. Aristotelidis
Tower Life Building
310 South St. Mary’s St., Suite 1830
San Antonio, Texas 78205
(210) 277-1906
jgaristo67@gmail.com
By: /s/ Jorge G. Aristotelidis
State Bar No. 00783557
14
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing “Appellant’s
Petition for Discretionary Review,” was served upon opposing counsel, the
Appellate Division of the Bexar County District Attorneys Office, and to Mr.
Matthew Paul, State’s Attorney, by e-mailing a copy to the Bexar County District
Attorneys Office at the Paul Elizondo Tower, 101 W. Nueva, Rm. 370 San
Antonio, Texas 78205, and P.O. Box 12405, Austin, Texas, 78711, respectively,
on this the 22nd day of July, 2015.
/s/ Jorge G. Aristotelidis
15
CERTIFICATE OF COMPLIANCE
In accordance with Tex. R. App. P. 9.4(i)(1) and 9.4(i)(2(D), I hereby certify
that this brief contains 3,153 words, which have been counted by use of the
“Word” program with which this brief was written.
/s/ Jorge G. Aristotelidis
16
| | Neutral
As of: July 22, 2015 9:57 PM EDT
Arrington v. State
Court of Appeals of Texas, Fourth District, San Antonio
March 18, 2015, Delivered; March 18, 2015, Filed
No. 04-12-00430-CR
Reporter
2015 Tex. App. LEXIS 2529
Charles ARRINGTON, Appellant v. The HOLDINGS: [1]-Court’s failure to submit
STATE of Texas, Appellee a unanimity instruction did not amount to
fundamental error mandating automatic
Notice: PLEASE CONSULT THE TEXAS reversal because defendant did not have a
RULES OF APPELLATE PROCEDURE right to a unanimous jury verdict under the
FOR CITATION OF UNPUBLISHED Sixth and Fourteenth Amendments;
OPINIONS. [2]-Counsel was not ineffective for not
objecting to testimony by the school
Prior History: [*1] From the 187th
counselor under Tex. R. Evid. 702 about
Judicial District Court, Bexar County,
the truthfulness of the alleged victim’s
Texas. Trial Court No. 2011CR1663.
sexual misconduct accusations because the
Honorable Sharon MacRae, Judge
counsel’s strategy in not objecting may
Presiding.
have been for the purpose of avoiding
Arrington v. State, 2015 Tex. Crim. App.
emphasizing the matter before the jury;
LEXIS 15 (Tex. Crim. App., Jan. 14, 2015)
[3]-Counsel was not ineffective for not
Disposition: AFFIRMED. objecting to testimony by the alleged
victim’s mother under Tex. R. Evid. 608
Core Terms about the truthfulness of the alleged
victim’s sexual misconduct accusations
credibility, ineffective, unanimous, sexual, because the mother’s comments were brief
sexual organ, asserts, jury charge, and somewhat vague and counsel’s strategy
penetration, counselor, questions, talk, pet, may have been to avoid emphasizing the
counsel’s failure, outrageous, issues matter before the jury.
Case Summary Outcome
Overview Judgment affirmed.
JORGE ARISTOTELIDIS
Page 2 of 9
2015 Tex. App. LEXIS 2529, *1
LexisNexis® Headnotes sufficient to undermine confidence in an
outcome. This two-pronged test is a
Constitutional Law > ... > Fundamental benchmark for judging whether counsel’s
Rights > Criminal Process > Right to Jury conduct so undermines the proper
Trial functioning of the adversarial process that
Criminal Law & Procedure > Trials > a trial cannot be relied on as producing a
Verdicts > Unanimity reliable result.
HN1 The U.S. Supreme Court holds that Criminal Law & Procedure > ... > Counsel >
although the Sixth Amendment right to Effective Assistance of Counsel > Trials
trial by jury requires a unanimous jury Criminal Law & Procedure > ... > Counsel >
verdict in federal criminal trials, it does not Effective Assistance of Counsel > Tests for
require a unanimous jury verdict in state Ineffective Assistance of Counsel
criminal trials. A state criminal defendant,
Criminal Law & Procedure > Appeals >
at least in noncapital cases, has no federal
Procedural Matters > Records on Appeal
right to the unanimous jury verdict.
Although the Sixth Amendment is Criminal Law & Procedure > Appeals >
applicable to the States by virtue of the Standards of Review > General Overview
Fourteenth Amendment, the United States HN3 Generally, a trial record will not
Constitution clearly does not grant a right suffice to establish an ineffective assistance
to the unanimous verdict. of counsel claim. When ineffective
Criminal Law & Procedure > ... > Counsel >
assistance is raised on direct appeal,
Effective Assistance of Counsel > Tests for appellate counsel and a court must proceed
Ineffective Assistance of Counsel on the trial record not developed for an
object of litigating or preserving the claim
Criminal Law & Procedure > ... > Counsel >
and thus is often incomplete or inadequate
Effective Assistance of Counsel > Trials
for this purpose. Nonetheless, some claims
Criminal Law & Procedure > Appeals > may be disposed of on direct appeal where
Standards of Review > General Overview trial counsel’s ineffectiveness is so apparent
HN2 An appellate court reviews an from the record. When no reasonable trial
appellant’s claim of ineffective assistance strategy can justify the trial counsel’s
of counsel under a well-established conduct, counsel’s performance falls below
standard of review. A defendant must show an objective standard of reasonableness as
(1) that counsel’s performance is deficient, a matter of law, regardless of whether the
i.e., counsel’s assistance falls below an record adequately reflects the trial counsel’s
objective standard of reasonableness; and subjective reasons for acting as he or she
(2) prejudice, i.e., a reasonable probability does. When the record contains no evidence
that, but for counsel’s unprofessional errors, of counsel’s reasons for the challenged
a result of the proceeding will be different. conduct, an appellate court will assume a
The reasonable probability is a probability strategic motivation if any can possibly be
JORGE ARISTOTELIDIS
Page 3 of 9
2015 Tex. App. LEXIS 2529, *1
imagined, and will not conclude the Opinion
challenged conduct constitutes deficient
performance unless the conduct is so MEMORANDUM OPINION
outrageous that no competent attorney will
AFFIRMED
engaged in it.
This appeal is on remand from the Texas
Evidence > ... > Testimony > Expert Court of Criminal Appeals. Charles
Witnesses > General Overview
Arrington is appealing his conviction on
Evidence > Admissibility > Expert five counts of aggravated sexual assault of
Witnesses a child and one count of indecency with a
HN4 Expert testimony that a particular child by sexual contact. In an opinion
witness is truthful is inadmissible under dated August 14, 2013, this court reversed
Tex. R. Evid. 702. appellant’s conviction after concluding
appellant was denied a fair trial based on
Evidence > ... > Impeachment > Bad the trial court’s failure to include a
Character for Truthfulness > Opinion & unanimity instruction in the jury charge
Reputation and, thus, was egregiously harmed.1 See
Arrington v. State, 413 S.W.3d 106 (Tex.
HN5 The credibility of a witness may be
App.—San Antonio 2013), re v ’d &
supported by evidence in the form of
remanded, S.W.3d , No. PD-1448-13,
opinion, but the evidence may only refer to
2015 Tex. Crim. App. LEXIS 15, 2015 WL
character for truthfulness and evidence of
170110 (Tex. Crim. App. Jan. 14, 2013).
truthful character is admissible only after
On the State’s appeal to the Court of
the character of the witness for truthfulness
Criminal Appeals, the Court concluded
is attacked. Tex. R. Evid. 608.
appellant was not egregiously harmed, and
Counsel: For APPELLANT: Jorge G. remanded the cause to this court for
Aristotelidis, Aristotelidis & Moore, San consideration of appellant’s remaining [*2]
Antonio, TX. issues on appeal.
On original appeal to this court, appellant
For APPELLEE: Jay Brandon, Assistant
raised five issues: (1) the trial court
District Attorney, San Antonio, TX.
committed jury charge error by failing to
Judges: Opinion by: Sandee Bryan Marion, give a unanimity instruction as to each
Chief Justice. Sitting: Sandee Bryan separate criminal incident alleged at trial,
Marion, Chief Justice, Marialyn Barnard, as charged in each separate count/offense
Justice, Luz Elena D. Chapa, Justice. in the indictment; (2) the trial court’s jury
charge error egregiously harmed him; (3)
Opinion by: Sandee Bryan Marion alternatively, the trial court’s jury charge
1
On appeal, the State conceded the lack of such an instruction in the jury charge was error.
JORGE ARISTOTELIDIS
Page 4 of 9
2015 Tex. App. LEXIS 2529, *2
error rendered his trial fundamentally of the female sexual organ of H.A. by
unfair, in violation of the Due Process appellant’s finger; and (7) causing the
Clause of the Fourteenth Amendment of penetration of the anus of H.A. by
appellant’s finger. Count six asserted a
the United States Constitution; (4) his trial
counsel rendered ineffective assistance of charge of indecency with a child by
counsel by failing to object to the State’s intentionally and knowingly engaging in
elicitation of expert witness testimony sexual conduct or contact on or about the
about the truthfulness of the complainant’s same date by causing H.A., who was under
sexual misconduct accusations; and (5) his seventeen years of age, to touch part of the
genitals of appellant with the intent to
trial counsel rendered ineffective assistance
of counsel by failing to object to the arouse or gratify the sexual desire of any
State’s elicitation of lay witness testimonyperson. The State presented evidence of
about the truthfulness of the complainant’s more than one instance of sexual contact to
allegations. Because the State conceded support each count; however, the jury
error (the first issue), and we reversed instructions [*4] did not specifically inform
the jurors that they had to be unanimous
based on our conclusion that appellant was
about which separate instance of abuse
egregiously harmed (the second issue), our
they believed constituted the commission
opinion did not address appellant’s final
of the offense for purposes of each
three arguments. After considering [*3]
individual count.2 Instead, the trial court’s
these remaining issues, we affirm.
instructions permitted the jurors to consider
DUE PROCESS whether appellant was guilty of each of the
seven alleged offenses, and the jurors were
Counts one through five and count seven provided with seven different verdict forms.
against appellant alleged that, on or about
Appellant asserts the trial court’s failure to
March 26, 2010, appellant committed the
submit a unanimity instruction as to each
offense of aggravated sexual assault of a individual count amounted to fundamental
child (H.A.) by intentionally and knowingly trial error in violation of the Due Process
(1) causing the penetration of the female Clause to the Fourteenth Amendment to
sexual organ of H.A. by appellant’s male the U.S. Constitution, which mandates
sexual organ; (2) causing the penetration automatic reversal of his convictions. We
of the anus of H.A. by appellant’s male disagree.
sexual organ; (3) causing the female sexual
organ of H.A. to contact the mouth of HN1 ″The [U.S. Supreme] Court has held
appellant; (4) causing the penetration of that although the Sixth Amendment right to
the mouth of H.A. by appellant’s male trial by jury requires a unanimous jury
sexual organ; (5) causing the penetration verdict in federal criminal trials, it does not
2
For example, with respect to count one, which alleged that appellant’s male sexual organ penetrated H.A.’s female sexual organ,
H.A.’s testimony presented evidence of two separate criminal acts that would constitute this offense in her description of the events in
her shower and those occurring on the mattress in appellant’s girlfriend’s living room.
JORGE ARISTOTELIDIS
Page 5 of 9
2015 Tex. App. LEXIS 2529, *4
require a unanimous jury verdict in state HN2 We review an appellant’s claim of
criminal [*5] trials.″ McDonald v. City of ineffective assistance of counsel under the
Chicago, III., 561 U.S. 742, 766 n.14, 130 well-established standard of review. See
S. Ct. 3020, 177 L. Ed. 2d 894 (2010); see Strickland v. Washington, 466 U.S. 668,
also Schad v. Arizona, 501 U.S. 624, 634 n. 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674
5, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1984); Thompson v. State, 9 S.W.3d 808,
(1991) (″[A] state criminal defendant, at 812 (Tex. Crim. App. 1999). The defendant
least in noncapital cases, has no federal must show (1) that counsel’s performance
right to a unanimous jury verdict.″); was deficient, i.e., counsel’s assistance fell
Romero v. State, 396 S.W.3d 136, 147 (Tex. below an objective standard of
App.—Houston [14th Dist.] 2013, pet. reasonableness; [*6] and (2) prejudice,
ref’d) (recognizing that, although Sixth i.e., a reasonable probability that, but for
Amendment is applicable to the States by counsel’s unprofessional errors, the result
virtue of the Fourteenth Amendment, ″[t]he of the proceeding would have been
United States Constitution clearly does not different. Thompson, 9 S.W.3d at 812. A
grant a right to a unanimous verdict″); reasonable probability is a probability
Phillips v. State, 130 S.W.3d 343, 351 n.6 sufficient to undermine confidence in the
(Tex. App.—Houston [14th Dist.] 2004), outcome. Id. This two-pronged test is the
aff’d, 193 S.W.3d 904 (Tex. Crim. App. benchmark for judging whether counsel’s
2006). Therefore, we do not believe the conduct so undermined the proper
trial court’s error violated appellant’s functioning of the adversarial process that
federal due process rights or amounted to the trial cannot be relied on as having
an automatic reversal. Romero, 396 S.W.3d produced a reliable result. Id.
at 147 (concluding appellant’s argument
lacked merit and proceeding to examine HN3 Generally, the trial record will not
appellant’s claimed right to unanimity of suffice to establish an ineffective assistance
jury verdict under only Texas law); see of counsel claim. Id. at 813-14. When, as
also Almanza v. State, 686 S.W.2d 157, here, ineffective assistance is raised on
172-74 (disapproving of cases which direct appeal, appellate counsel and the
suggest jury charge error requires an court must proceed on a trial record not
″automatic″ reversal). developed for the object of litigating or
preserving the claim and thus is often
INEFFECTIVE ASSISTANCE OF incomplete or inadequate for this purpose.
COUNSEL Freeman v. State, 125 S.W.3d 505, 506
In two issues, appellant asserts trial counsel (Tex. Crim. App. 2003); cf. Massaro v.
was ineffective for not objecting to United States, 538 U.S. 500, 504-05, 123
testimony about the truthfulness of H.A.’s S. Ct. 1690, 155 L. Ed. 2d 714 (2003).
sexual misconduct accusations. Nonetheless, some claims may be disposed
of on direct appeal where ″trial counsel’s
1. Standard of Review ineffectiveness is so apparent from the
JORGE ARISTOTELIDIS
Page 6 of 9
2015 Tex. App. LEXIS 2529, *6
record.″ Massaro, 538 U.S. at 508; on the subject of ″manipulation,″ ″fantasy,″
Freeman, 125 S.W.3d at 507; see also or any other accepted, expert-based aspect
Andrews v. State, 159 S.W.3d 98, 103 (Tex. of credibility. Appellant also asserts
Crim. App. 2005); Thompson, 9 S.W.3d at McGinnis’s testimony was not presented
814 n.6. ″[W]hen no reasonable trial as a response to the defense ″opening the
strategy could justify the trial counsel’s door.″ Appellant asserts the State portrayed
conduct, counsel’s performance falls below McGinnis as an ″expert″ at trial. HN4
an objective standard of reasonableness as Expert [*8] testimony that a particular
a matter of law, regardless of whether the witness is truthful is inadmissible under
record adequately [*7] reflects the trial Texas Rule of Evidence 702. Yount v. State,
counsel’s subjective reasons for acting as 872 S.W.2d 706, 711 (Tex. Crim. App.
[he] did.″ Andrews, 159 S.W.3d at 102. 1993).
When the record contains no evidence of H.A. had testified she told her friends
counsel’s reasons for the challenged about the incidents that occurred over
conduct, we ″’will assume a strategic spring break. McGinnis approached H.A.
motivation if any can possibly be twice about rumors, which were circulating
imagined,’ and will not conclude the at her elementary school, that H.A. was
challenged conduct constituted deficient pregnant. The first time, H.A. told
performance unless the conduct was so McGinnis it was a joke and her friends
outrageous that no competent attorney made her do it. The second time, H.A. told
would have engaged in it.″ Garcia v. State, McGinnis about the sexual abuse.
57 S.W.3d 436, 440 (Tex. Crim. App. 2001);
Moran v. State, 350 S.W.3d 240, 243 (Tex. When McGinnis took the stand, the State
App.—San Antonio 2011, no pet.). Here, no first questioned her about her qualifications:
motion for new trial was filed, and no Q: And so how long have you worked
post-trial evidentiary hearing was held. as a school counselor?
Therefore, our review is limited to the trial
record. A: I’ve been a school counselor for 11
years.
2. School Counselor’s Testimony
Q: And how long have you worked in
During trial, the State asked Lisa McGinnis, school administration.
the school counselor, for her opinion on A: Twenty-one years.
the truthfulness of H.A.’s accusations and
Q: Now, what age groups have you
the State concedes McGinnis answered
worked with?
direct questions on H.A.’s credibility and
truthfulness. Defense counsel did not A: Mostly elementary school but the
object. Appellant asserts McGinnis was last two years I worked with middle
neither qualified nor presented as an expert schools anywhere from five to 15.
JORGE ARISTOTELIDIS
Page 7 of 9
2015 Tex. App. LEXIS 2529, *8
Q: Now, what kind of education do you A: . . . The first time I talked to her she
have? didn’t want to tell me. She was fearful
A: I have a [sic] early childhood and that also made me feel like that this
education degree, a bachelor’s. I have a was a truthful report.
master’s in counseling and then a Ph.D.
in counseling and supervision and I’m a [Emphasis added.]
licensed professional counselor outside Appellant argues this amounted to an expert
of my school counseling certification. opinion that H.A.’s accusation against him
was the truth. Appellant asserts trial
The State then asked her about H.A.’s
counsel’s failure to object cannot be
credibility:
considered trial strategy, and he [*10]
Q: What did — what details did you relies on several cases that appear to stand
[*9] see that lent credibility to her for the proposition that there are no
story that made you know that she was circumstances in which allowing a witness
telling you the truth? to opine on the truthfulness of the
A: I felt that she was telling me the complainant in a case where there is no
truth based on the fact that she had physical or scientific evidence linking the
details, for example, what movie they defendant to the crime and credibility of
were watching; that her brother was the complainant is the primary issue, might
playing PlayStation when it happened be considered sound trial strategy. See
when she was nine; that she could very Fuller v. State, 224 S.W.3d 823, 835 (Tex.
much put herself in the situation of App.—Texarkana 2007, no pet.) (″defense
what was going on exactly at that time. counsel’s tactic seems to have been to
Those were the things that made me allow, without objection, the State’s
feel like she was telling the truth. witnesses to testify to the credibility and
Q: Okay. Now, what told you that those truthfulness of J.W.’s allegations and then,
were the important factors? on cross-examination, to explore the
A: Based on my experience that I’ve foundation for that witness’ belief in the
had with other students, based on my credibility, believability, or truthfulness of
educational experience. Those were the J.W.’s allegations″); Sessums v. State, 129
things that I fell back on. S.W.3d 242, 248 (Tex. App.—Texarkana
2004, pet. ref’d) (″[W]e find ourselves
Q: So you were trained to look for these reviewing the activities of trial counsel in
signs? failing to object to clearly and
A: As a counselor, yes. unquestionably objectionable testimony of
... the most outrageous and destructive type.
Q: . . . I mean, what did she do that There is no conceivable strategy or tactic
might have happened had she been that would justify allowing this testimony
giving a false report? in front of a jury.″); Miller v. State, 757
JORGE ARISTOTELIDIS
Page 8 of 9
2015 Tex. App. LEXIS 2529, *10
S.W.2d 880, 884 (Tex. App.—Dallas 1988, to make an official report. During
pet. ref’d) (″In the present case, we can cross-examination, defense counsel asked
glean no sound trial strategy in defense McGinnis only a few questions.
counsel’s failure to object to the extensive, Our review of the record indicates defense
inadmissible testimony concerning the only counsel’s strategy in not objecting and
real issue at trial—complainant’s conducting a limited cross-examination
credibility.″); Garcia v. State, 712 S.W.2d may have been for the purpose of avoiding
249, 253 (Tex. App.—El Paso, pet. ref’ d) emphasizing the matter before the jury.
[*11] (″counsel should have made and Also, McGinnis’s testimony was in the
persisted in valid objections to all of the context of her following up on the second
testimony which permitted Detective rumor and her decision to make an official
Calanche and Yolanda Aguilar to pass report. We conclude appellant has not
upon the credibility of other witnesses″). satisfied his burden of proving there was
However, after a review of the record, we no imaginable strategy for defense
do not agree with appellant’s contention counsel’s failure to object. Therefore,
that defense counsel’s performance was appellant has failed to rebut the strong
outrageous and lacked any possible presumption of effective assistance, and
strategic motive. McGinnis was an outcry has not shown that counsel’s conduct was
witness who spoke to H.A. twice. During so outrageous that no competent attorney
the first conversation, H.A. did not admit would engage in it or that the outcome of
the abuse to McGinnis; instead, H.A. told the trial is unreliable due to counsel’s
McGinnis the pregnancy rumor was merely errors.
a misunderstanding with her friends.
McGinnis admitted H.A. ″was not 3. The Mother’s Testimony
forthcoming in telling me anything that The State also asked H.A.’s mother
was going on that was inappropriate.″ questions about H.A.’s truthfulness. HN5
McGinnis did not believe an official report The credibility of a witness may be
was necessary, although she informed supported by evidence in the form of
H.A.’s mother about the conversation. The opinion, but the evidence may only refer to
second conversation with H.A. occurred character for truthfulness and evidence of
two days later when another rumor truthful character is admissible only after
circulated that not only was H.A. pregnant, the character of the witness [*13] for
but H.A. thought the baby might be truthfulness has been attacked. TEX . R.
appellant’s. McGinnis called H.A. back to EVID. 608. Appellant argues he did not
her office, and this time, H.A. made her ″open the door″ by attacking H.A.’s
outcry. McGinnis then made her official credibility, so as to allow H.A.’s mother to
report. The above questioning occurred in provide her opinion on H.A.’s truthfulness.
the context of the State asking McGinnis Appellant points to the following portions
[*12] what made her believe H.A. enough of H.A. ’s mother’s testimony:
JORGE ARISTOTELIDIS
Page 9 of 9
2015 Tex. App. LEXIS 2529, *13
Q: And has she, I guess, changed from not object.
her initial reaction of talking about
On appeal, appellant asserts that because
what happened?
defense counsel [*14] did not attack H.A.’s
A: You mean — not really, no. You character for truthfulness, it was improper
mean, like personality? for the State to elicit this testimony. And,
Q: Yes. I mean, is she still fearful and even if H.A.’s character for truthfulness
embarrassed when she talks about it? had been attacked, the mother’s testimony
was not proper rebuttal testimony.
A: No but we don’t really talk about it Therefore, defense counsel’s failure to
all that much but I ask her questions object constituted ineffective assistance of
and she’s very honest with her answer counsel. We disagree.
and she’s not — she doesn’t hide the
answers. She tells me the truth. The mother’s comments were brief and
somewhat vague as to the content of what
... H.A. said that was ″truthful.″ Our review
Q: You didn’t think this could happen of the record indicates defense counsel’s
to your daughter? strategy in not objecting may have been
for the purpose of avoiding emphasizing
A: Yes.
the matter before the jury. We conclude
Q: Did you talk to [H.A.] about the fact appellant has not satisfied his burden of
that police were going to be involved proving there was no imaginable strategy
and she was going to have to — for defense counsel’s failure to object.
A: Yes. Therefore, appellant has failed to rebut the
strong presumption of effective assistance,
Q: — follow through with that? and has not shown that counsel’s conduct
A: Yes. was so outrageous that no competent
Q: Did you talk to her about how attorney would engage in it or that the
serious this was? outcome of the trial is unreliable due to
counsel’s errors.
A: Yes.
Q: Did you ask [H.A.] if she was telling CONCLUSION
the truth? We overrule appellant’s remaining issues
A: Yes. on appeal and affirm the trial court’s
judgment.
Q: And what did she say to you?
Sandee Bryan Marion, Chief Justice
A: She said yes and she started crying.
Do not publish
[Emphasis added.] Appellant’s counsel did
JORGE ARISTOTELIDIS
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Case # PD-0756-15
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Date Filed 07/22/2015 09:46:31 PM
Case Number PD-0756-15
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Documents
Petition for Discretionary Review - FINAL - Charles Lavoy
Lead Document [Original]
Arrington.pdf
Attachments Arrington v. State_ 2015 Tex. App. LEXIS 2529-2.pdf [Original]
eService Details
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