in Re: Michael Dean Perry

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00091-CV ______________________________ IN RE: MICHAEL DEAN PERRY Original Mandamus Proceeding Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Relator, Michael Dean Perry, was convicted February 26, 2008, of the offense of tampering with evidence. See Tex. Penal Code Ann. § 37.09 (Vernon Supp. 2008). Due to enhancements, he was sentenced to twenty-five years' incarceration. The trial court appointed counsel to represent Perry on appeal; pursuant to the various pertinent Texas Rules of Appellate Procedure, the clerk's and reporter's records have been filed with this Court, and Perry's appellate brief was initially due with this Court on August 25, 2008. See generally Tex. R. App. P. 34.5, 34.6, 35.2. A motion for extension of time to file that brief is currently pending before the Court. Notwithstanding that Perry has appointed counsel, four days before his brief was due, he filed a petition with this Court seeking mandamus relief. Perry would have us: 1) order the Gregg County District Clerk and trial court reporter to provide Perry with a copy of the appellate record; and 2) order Perry's appointed counsel, Tim Cone, to visit Perry in prison on or before August 25. Our power to issue a writ of mandamus does not extend to the district clerk unless the relator establishes that the writ must issue to enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); In re Simpson, 997 S.W.2d 939 (Tex. App.--Waco 1999, orig. proceeding). The courts of appeals have the obligation to ensure records are timely filed and may enter orders to accomplish that end as authorized by the Texas Rules of Appellate Procedure. (1) Likewise, based on the appellate rules, we may issue orders to ensure that attorneys file required documents, (2) but we do not have mandamus authority to require the relief Perry has requested. As stated above, this Court is in receipt of both the clerk's and reporter's records in this case. And nothing indicates counsel is not in the process of drafting an appellate brief in this matter. Perry has failed to state any claim which could support mandamus relief. We deny his petition. Jack Carter Justice Date Submitted: September 3, 2008 Date Decided: September 4, 2008 1. See Tex. R. App. P. 35.3(e). 2. See Tex. R. App. P. 38.8(2), (4). been looking for homes with poor security. (2) Therefore, the court concluded the relevance and probative value of the conviction outweighed any prejudice that might have been caused. The State offered the conviction into evidence in the presence of the jury, and King's attorney expressly stated "no objection" to the admissibility of the conviction, waiving his right to complain of the admission on appeal. Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983) (holding that, if trial counsel expressly states "no objection" to admissibility of evidence challenged in a prior motion to suppress or evidentiary hearing, error would not be preserved and is waived). A. Legal Sufficiency When there has been a challenge to both the legal and factual sufficiency of the evidence, the court must first determine if the evidence was legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Hines v. State, 978 S.W.2d 169, 172 (Tex. App.-Texarkana 1998, no pet.). Accordingly, the proper standard of review to determine legal sufficiency is whether the evidence would support the verdict when viewed in a light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In other words, if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the verdict will be deemed legally sufficient. Clewis, 922 S.W.2d at 134. In Brown v. State, 881 S.W.2d 582, 584 (Tex. App.-Corpus Christi 1994, no pet.), the court held the appellant entered the victim's home with the intent to commit and did commit the felony offense of sexual assault. On appeal, Brown contended the DNA evidence presented at trial was insufficient to link him to the crime. Id. at 584-86. The prosecution offered DNA evidence in the form of Brown's fingerprints taken from the victim's home and vaginal swabs taken from the victim. Id. Additionally, the prosecution procured testimony from two forensic scientists, and the prosecution's scientists determined that, based on the DNA analysis, Brown was a B secretor and PGM 1+2+, (3) and his DNA type was found in one person per 200,000 in the African-American population, one in three million in the Caucasian population, and one in one million in the Hispanic population. Id. Consequently, the experts testified Brown could not be excluded as a suspect. Id. Given the results of the DNA testing, the court held that, when viewing all of the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. at 586; see Glover v. State, 825 S.W.2d 127, 128 (Tex. Crim. App. 1992) (holding DNA evidence in sexual assault case was admissible to prove identity). Similarly, in Williams v. State, 848 S.W.2d 915, 916 (Tex. App.-Texarkana 1993, no pet.), this Court held the evidence legally sufficient to affirm a conviction for aggravated sexual assault. The victim could not identify her attacker. Id. However, the police performed a DNA comparison between the seminal fluid taken from the victim and blood and saliva samples taken from Williams. Id. The prosecution presented evidence that, based on the DNA testing, there was a one in 12,500,000 chance that the blood found in the seminal fluid taken from the victim's vaginal area was not that of Williams. Id. at 917. On the other hand, Williams produced testimony that the victim had sexual intercourse with another individual on the day of the assault and that Williams was out of the state with his wife on the day of the offense. Id. However, Williams' wife admitted she did not know of Williams' whereabouts on the day of the offense. Id. This Court held that, viewing the evidence in the light most favorable to the jury's verdict, a rational trier of fact could have found the existence of the essential elements of the crime beyond a reasonable doubt. Id. This Court reasoned that the jury determines the credibility of the witnesses and may reject any or all of the witnesses' testimony and could have chosen to disbelieve the testimony of Williams' witnesses. Id.; see Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981) (holding jury exclusive judge of credibility of witnesses and may reject any or all of any witnesses' testimony). In the present case, the State presented evidence that the police were able to recover semen specimens from the pantyhose used to blindfold the victim, as well as from oral swabs taken from the victim during the course of the sexual assault exam. At trial, the prosecution presented the testimony of Lorna Beasley (4) and Judith Floyd, (5) both of whom conducted DNA analysis on the semen specimens collected from the victim and the blood samples collected from King. Beasley testified, based on her DNA analysis, that King, in her expert opinion, was the source of the specimens taken from both the saliva swab and the pantyhose. Specifically, Beasley testified there was a one in 1.65 quintillion chance the specimen from the saliva swab did not come from King. Beasley also testified there was a one in eighty-two chance the specimen collected from the pantyhose did not come from King, and she explained the number was much smaller because the specimen was mixed with the DNA of the victim and the specimen itself was much smaller than that taken from the saliva swab. The State also procured testimony from Floyd, who testified there was a one in 1.18 trillion chance the sperm specimen from the swab did not come from King. In addition to the DNA evidence, the State also introduced evidence King was convicted approximately three months after the assault in question for disorderly conduct (window peeping) in close proximity to the victim's home. The Texas Court of Criminal Appeals has held DNA evidence is admissible to prove identity. Glover, 825 S.W.2d at 128. Additionally, in Williams, the only evidence presented by the prosecution linking the appellant to the crime was DNA analysis, yet this Court held such evidence was legally sufficient to establish identity. Williams, 848 S.W.2d at 916-17. In the present case, the prosecution presented DNA evidence linking King to the scene of the crime, as well as evidence of a prior conviction for disorderly conduct in close proximity to the victim's home. The jury was entitled to weigh the evidence presented by both King and the prosecution to determine if King was the offender. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (jury, in all cases, is exclusive judge of facts proved and weight to be given testimony). Therefore, viewing the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found King guilty of the crime charged. We overrule King's first point of error. B. Factual Sufficiency In his second point of error, King contends the evidence was factually insufficient to support the verdict. A factual sufficiency review dictates the evidence be viewed in a neutral light, favoring neither party. Johnson, 23 S.W.3d at 7. In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7. Further, we set aside the verdict for factual insufficiency only if (1) the evidence in support of a vital fact, considered as standing alone, is factually too weak to support it, or (2) looking at all the evidence, some evidence supports a positive inference and some supports a negative inference, but the state's evidence is so weak as to make the finding against the great weight and preponderance of the available evidence. Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001). In the present case, King contends the state's evidence, that he could not be excluded as the source of the male DNA found as a result of the sexual assault examination, was not sufficient in light of the fact that the victim could not identify her attacker, no latent fingerprints or footprints were found at the crime scene, and the glass pitcher seized at the crime scene was broken while in police custody. Additionally, King presented testimony that the police failed to determine if he had certain identifiable traits at the time of the offense, such as facial hair and shaved pubic region. (6) Roberson v. State, 16 S.W.3d 156 (Tex. App.-Austin 2000, pet. ref'd), was similar to the case at bar. Specifically, Roberson challenged his conviction for aggravated assault, arguing that, in the absence of circumstantial evidence such as eyewitness testimony, fingerprints, or physical proximity to the crime scene, the State had not produced factually sufficient evidence to support a conviction. Id. at 159. The State presented expert testimony that Roberson could not be excluded as the source of the semen taken from the victim in a post-rape examination because Roberson was a blood type O secretor with a PGM type of 1- 1+, identical to the attacker. Id. at 161. Further, the state produced testimony from two expert witnesses that in their opinion Roberson was the source of the semen recovered from the crime scene. Id. at 161-63. At the close of the experts' testimony, the state rested, and Roberson did not present any evidence. Id. at 163. The court held that, because Roberson did not offer any evidence, the conviction would be overturned only if the state's evidence, standing alone, was factually too weak to support the conviction. Id.; see Goodman, 66 S.W.3d at 283. Accordingly, the court affirmed the conviction. In doing so, it held based on the state's DNA evidence, the blood grouping test, and the court's obligation to give deference to the jury's verdict, that the evidence was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Roberson, 16 S.W.3d at 171; see Johnson, 23 S.W.3d at 7. As set out above, King presented the testimony of two witnesses who testified they did not verify whether King had been shaved in the pubic area. However, when compared to the evidence presented by the State, set forth in the legal sufficiency analysis, King has failed to show the verdict is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 7. The Texas Court of Criminal Appeals has repeatedly held DNA evidence is admissible to prove identity. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); Glover, 787 S.W.2d at 547. Further, in Roberson, the court held that DNA evidence, standing alone, without additional circumstantial evidence, was legally and factually sufficient to establish identity. Roberson, 16 S.W.3d at 171-72. Despite King's contention that, because a blood grouping test was not performed, the evidence is factually insufficient, King has failed to cite to any authority that would render the State's evidence unreliable and cause the jury's verdict to be clearly wrong and unjust. As a result, King has failed to meet his burden, and the evidence is factually sufficient to support the verdict. We overrule King's second point of error. C. Assistance of Counsel In his third point of error, King contends his trial counsel was ineffective. The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) his counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. 668; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. Our review of counsel's representation is highly deferential, with a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex. App.-Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814. The burden is on the appellant to overcome that presumption by identifying the acts or omissions of counsel that are alleged to have constituted the ineffective assistance and then affirmatively prove that they fall below the professional norm for reasonableness. Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). Then, the appellant must prove that counsel's errors, judged by the totality of the representation, denied him or her a fair trial. Merely showing they had some conceivable effect on the proceedings is inadequate. Strickland, 466 U.S. at 693. Because the appellant must affirmatively prove counsel's representation was ineffective, the record has often not been sufficiently developed to enable an appellate court to adequately determine whether the appellant was provided ineffective assistance of counsel. Thompson, 9 S.W.3d at 814-15. For example, in Thompson, the appellant's trial counsel objected several times to the admissibility of a certain piece of evidence, and the trial court sustained his objection on each occasion. Id. at 810-12. However, during the course of the trial, the prosecution offered the evidence again and counsel failed to object, causing the evidence to be admitted into the record. Id. On appeal, the appellant contended counsel's failure to object resulted in ineffective assistance of counsel. Id. at 813. The court held the record was silent as to why counsel failed to object. Id. at 814. The court reasoned the failure to object may have been attributable to a reasonable belief that the prosecution was correct in offering the evidence. Because the first prong of Strickland is not satisfied if there is any plausible reason for the trial attorney's actions, the court held Thompson failed to meet his burden of proof and declined to hold his counsel was ineffective. Id.; see Strickland, 466 U.S. 668. However, the court did hold that "the general doctrine that forbids an application for writ of habeas corpus after direct appeal has addressed the issue [did] not apply" and that such a hearing would be appropriate to allow the trial attorney to explain his reasons for failing to take proper actions. Thompson, 9 S.W.3d at 814-15. In the present case, King argues his counsel was ineffective in affirmatively stating "no objection" when the State sought to introduce King's previous conviction for disorderly conduct (window peeping). Specifically, in a hearing conducted outside the presence of the jury, the trial court decided to allow the admission of the prior conviction. The record is entirely void of any explanation for counsel's statement of "no objection." Similarly, in Thompson, the court held the record had not been sufficiently developed, to allow that court to adequately consider the issue on direct appeal. Thompson, 9 S.W.3d at 814. The court reasoned that "an appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions." Id. In the present case, King has failed to meet the first prong of Strickland because the record has not been adequately developed for this Court to consider whether counsel's representation was ineffective. However, like Thompson, King is not precluded from bringing a petition for writ of habeas corpus to fully develop the record. Id. at 814-15. We overrule King's third point of error and affirm the conviction. Josh R. Morriss, III Chief Justice Date Submitted: September 13, 2002 Date Decided: October 17, 2002 Publish 1. One quintillion would be the equivalent of a one with eighteen zeros behind it. 2. At trial, the victim testified her assailant informed her she needed to get better security. As a result, the trial court reasoned that the prior conviction for window peeping was relevant to show identity in that King could have been searching for homes with poor security. 3. Brown v. State, 881 S.W.2d 582, 585 (Tex. App.-Corpus Christi 1994, no pet.). The forensic scientist determined from the seminal fluid recovered from the crime scene that the semen was from an individual having blood type B. Further, she tested for phosphoglucomutase (PGM) and determined there were three possible types out of ten, which were 1+2+, 1-2+, or 2+. 4. Lorna Beasley is a section supervisor for the serology DNA section of the Texas Department of Public Safety Crime Laboratory in Garland, Texas. Her duties include supervising the serology and DNA sections, as well as performing DNA analysis. 5. Judith Floyd is a supervisor of the forensic department for GeneScreen, a company located in Dallas, Texas. 6. The victim described her attacker as having a shaved pubic region and without facial hair.