Steven Craig Ingold v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Steven Craig Ingold Appellant Vs. No. 11-01-00048-CR B Appeal from Collin County State of Texas Appellee The jury convicted Steven Craig Ingold of the aggravated sexual assault of his six-year-old daughter, A.I., and sentenced him to confinement for 20 years. Appellant presents the following issues for review: (1) appellant=s constitutional rights were violated when the trial court instructed the jury that good conduct time could be applied to him when it legally could not; (2) the trial court abused its discretion when it refused to hold a live, oral hearing on appellant=s motion for new trial; (3) the trial court erred in finding the complaining witness competent to testify; (4) appellant received ineffective assistance during the guilt/innocence stage; and (5) appellant received ineffective assistance during the punishment stage. We affirm. Appellant does not challenge the sufficiency of the evidence. A.I.=s mother, Aimee Elizabeth Ingold, testified that, in August 1999, A.I. told her that she did not want to see her father anymore and that she was afraid of him. Soon after this, A.I. went with her mother to see Suzanne Schultz, a psychotherapist. A.I. drew pictures while visiting Schultz which indicated where appellant licked her and which showed Schultz what she considered to be their private areas. The jury saw these pictures, and Schultz told the jury about conversations she had with A.I. when she drew the pictures. Janetta Michaels, a forensic interviewer at the Children=s Advocacy Center in Plano, showed the jury an anatomical drawing on which A.I. had identified the male Aprivate part@ during an interview. During her first interview with A.I., A.I. gave Michaels sufficient detail about the incident. A.I. testified that appellant touched her private areas with his fingers and that he licked her private areas when she had her panties off. A.I. said that appellant also made her touch his private areas with her hands and that she licked his private areas when his underwear was off. In his first issue for review, appellant asserts that his State constitutional right to due course of law and his Federal constitutional right to due process protection were violated because the trial court improperly instructed the jury that good conduct time could be applied when it legally could not. Aggravated sexual assault is a felony. TEX. PENAL CODE ANN. ' 22.021 (Vernon Supp. 2002). TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 4(a) (Vernon Supp. 2002) provides that, if the offense of which the jury has found the defendant guilty is listed in TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 3g(a)(1) (Vernon Supp. 2002), the court shall charge the jury as follows: Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner. It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole. Aggravated sexual assault is listed in Article 42.12, section 3g(a)(1). However, TEX. GOV=T CODE ANN. ' 508.149(a) (Vernon Supp. 2002) provides that an inmate cannot be released to mandatory supervision if the inmate is serving a sentence or was previously convicted of aggravated sexual assault. Appellant=s constitutional rights were not violated. The court in Luquis v. State, 72 S.W.3d 355 (Tex.Cr.App.2002), recently addressed this issue and held that the Article 37.07, section 4(a) reference to good conduct time does not violate State due course of law and Federal due process protections when applied to defendants whose actual time in prison is affected by Section 508.149(a). Luquis is dispositive of this issue. Appellant=s first issue is overruled. In his second issue, appellant argues that the trial court abused its discretion when it refused to hold an evidentiary hearing on his motion for new trial. A hearing on a motion for new trial is not required on the ground of ineffective assistance of counsel. Reyes v. State, 849 S.W.2d 812, 813 (Tex.Cr.App.1993).[1] The trial court must determine whether an affidavit presented with the motion for new trial shows reasonable grounds which would entitle the accused to a hearing on the motion. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Cr.App.1994). A defendant has the right to a hearing on a motion for new trial when the motion raises matters that cannot be determined from the record. Torres v. State, 4 S.W.3d 295, 296 (Tex.App. - Houston [1st Dist.] 1999, no pet=n). In this case, the trial court issued an order after receiving the motion for new trial asking that specific allegations be heard by affidavit. The court received affidavits in response to its request and requested additional affidavits, which were provided. The record reveals that the court reviewed the affidavits before ruling on the motion for new trial. We also have reviewed the affidavits appellant presented in support of his motion for new trial.[2] We agree with the trial court that the motion does not raise matters which require an evidentiary hearing. The trial court did not abuse its discretion when it denied the motion for new trial without holding a live hearing. The second issue is overruled. In his third issue, appellant urges that the trial court erred in finding his daughter, A.I., competent to testify. TEX.R.EVID. 601(a)(2) provides that children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated are incompetent to testify. The trial court=s ruling will not be disturbed upon review unless an abuse of discretion is shown. Broussard v. State, 910 S.W.2d 952, 960 (Tex.Cr.App.1995). A child is competent to testify unless it appears to the court that she does not possess sufficient intellect to relate the transaction about which she will testify. Broussard v. State, supra at 960. The trial court allowed attorneys for both sides to question A.I. outside the presence of the jury for a determination of competency. A.I. was seven years old at the time of trial. During an extensive voir dire of A.I., the prosecutor elicited testimony that A.I. knew it was bad to tell a lie, that A.I. knew the difference between pretending and not pretending, and that A.I. understood that she had to tell the truth in the courtroom. The trial court did not abuse its discretion. The third issue is overruled. In his fourth and fifth issues, appellant asserts that he received ineffective assistance of counsel at the guilt/innocence stage and at the punishment stage. When confronted with a claim of ineffective assistance of counsel, we apply the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of the Strickland test requires appellant to show that his counsel=s performance was Adeficient.@ Strickland v. Washington, supra at 687. A showing that counsel was deficient requires a showing that the representation fell below an objective standard of reasonableness. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000). The second prong of the Strickland test requires appellant to show that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Tong v. State, supra at 712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra at 694. There is a strong presumption that counsel=s actions fell within the wide range of reasonable professional assistance. Appellant has the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The standard of proof for ineffectiveness of counsel is a preponderance of the evidence. Ramirez v. State, 987 S.W.2d 938, 943 (Tex.App. - Austin 1999, no pet=n). A defendant is entitled to reasonable effective assistance of counsel, not perfect counsel judged by hindsight; therefore, more than isolated errors and omissions will be needed to demonstrate ineffective assistance of counsel. Guevara v. State, No. 04-00-00340-CR, 2001 WL 1643914 (Tex.App. - San Antonio, December 26, 2001). Whether the Strickland test has been met is judged by the totality of the representation. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993); Price v. State, 923 S.W.2d 214, 217 (Tex.App. - Eastland 1996, pet=n ref=d). Appellant requested and was granted leave to extend the 50-page briefing limit. Under the general claim of ineffective assistance of counsel, appellant lists 40 examples which he claims prove that his trial counsel was deficient. In his brief, appellant argues that some of the errors alone require reversal while the rest, by cumulative effect, establish that the outcome of the proceeding would have been different. Appellant does not designate which of his arguments are which. His complaints fall into 8 categories. Appellant gives the following examples of deficiencies by trial counsel: (1) failing to investigate as evidenced by the following events during trial (a) defense counsel realized that Schultz had more drawings and reports at her office, (b) admitted that they had not seen a videotape of A.I.=s brother, and (c) failed to consider evidence critical to appellant=s defense; (2) failing to object to the punishment jury charge because it included an instruction on good conduct time; (3) moving for a competency examination in front of the jury; (4) failing to make proper objections; (5) failing to make an opening statement at the guilt/innocence stage and at the punishment stage; (6) failing to preserve error; (7) failing to object to questions about appellant=s silence after his arrest; and (8) failing to impeach A.I. In Example No. 1, appellant claims that trial counsel failed to adequately investigate the case. An attorney is ineffective if the failure to seek out and interview potential witnesses precludes the accused from advancing a viable defense. Mallet v. State, 9 S.W.3d 856, 866 (Tex.App. - Fort Worth 2000, no pet=n). When alleging ineffective assistance based on counsel=s failure to conduct a sufficient investigation, appellant must show how his representation would have benefitted from the additional consultation. Paez v. State, 995 S.W.2d 163, 170 (Tex.App. - San Antonio 1999, pet=n ref=d). Even assuming that this failure to investigate made trial counsel Adeficient@ for purposes of the Strickland test, appellant has not shown how his representation would have been improved with the use of the additional investigation or additional witnesses or that there is a reasonable probability that, without counsel=s errors, the outcome would have been different. In considering Example No. 2, appellant claims that trial counsel should have objected to the jury charge because of the reference to good conduct time. As discussed above, this was not error. See Bui v. State, supra at 841. In considering the remaining Examples Nos. 3 thru 8, appellant has not shown that any of these individual examples would, standing alone, constitute ineffective assistance. Appellant=s trial attorneys made several objections throughout the trial, took witnesses on voir dire, and challenged the competency of the complaining witness. While appellant has identified specific objections that he claims should have been made, many of these objections could be considered sound trial strategy. Several are explained by the defense attorneys in their affidavits. Appellant asserts that witnesses who would have been beneficial to him were not interviewed or asked to testify. However, the trial attorneys explain in their affidavits that the testimony of some of the witnesses would have been repetitive and gave reasons for other witnesses not having been contacted. Appellant has offered no explanation for how his defense would have benefitted from an opening statement. After reviewing the entire record, the cumulative effect of these remaining omissions and commissions in the context of the totality of the representation does not meet the first prong of Strickland. Appellant=s counsel met at least the minimal standards of effective assistance of counsel set forth by the United States Supreme Court and the Texas Court of Criminal Appeals.[3] Appellant=s fourth and fifth issues are overruled. Because we have overruled each of appellant=s issues on appeal, the judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE August 22, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and McCall, J., and McCloud, S.J.[4] [1]Whether or not to grant a new trial on ineffective assistance of counsel lies within the discretion of the trial court. Reyes v. State, supra at 813. [2](1) Lynne A. Corsi, a social worker and attorney, heavily criticized the testimony of forensic interviewer Janetta Michaels and psychotherapist Suzanne Schultz in her affidavit. (2) Ann Elizabeth Perritt, Aimee=s mother, asserted that possibly Mark Roberts, Aimee=s current boyfriend, could have abused A.I. (3) Billy Wayne Perritt, Aimee=s father, asserted claims of jury misconduct because the district attorney=s office told Aimee the night before the verdict Ait=s a done deal. It=s all over. He=s guilty.@ (4) Karen Ann Henshaw, Aimee=s first cousin, said that she believed appellant was innocent. Henshaw said that she had not seen any indication of sexual abuse. (5) Daivd Lee DeJarnett said that he had been around appellant and appellant=s children several times and that he had never seen the children act out sexually or show any fear of appellant. DeJarnett said that he volunteered to testify on appellant=s behalf. (6) Kelly Patricia Martin, appellant=s girlfriend, said that she had seen appellant around children many times and that she had never seen any inappropriate behavior between him and children. However, after answering a few questions for David Scoggins, appellant=s attorney at the time, Martin never heard from Scoggins again. Martin said that she would have testified on appellant=s behalf if she had been asked. (7) Christina M. Ingold, appellant=s mother, said that she had never seen the children act out sexually around appellant. Additionally, she pointed out that appellant=s first attorney never returned their phone calls and that eventually appellant had to hire new attorneys. She said that the new attorneys never spoke to her or her husband. (8) Lorene Johnson, Aimee=s grandmother, said that she had never been contacted by appellant=s lawyers. She said that appellant would often help her out and that she had never heard or seen anything that made her think appellant was abusing the children. She also criticized trial counsel=s treatment of appellant. (9) Michael Gray, appellant=s current attorney, extensively criticized trial counsel and stated that videotapes provided by trial counsel were provided so close to the deadline for the motion for new trial that he was unable to view them. (10) Dr. John Hartsell, a psychologist who treated appellant, said that he was not contacted by appellant=s lawyers to prepare him to testify. He was also not asked to provide his notes from appellant=s therapy. He said that he would have testified that A.I. may have been motivated to testify to the allegations based on implanting or the desire to please an adult and that appellant did not fit the profile of a sex offender. (11) Appellant also provided his own affidavit. Appellant criticized his first attorney, Keith Brown, for not returning several phone calls and for failing to show up at the motion to withdraw hearing. Appellant also criticized his trial counsel for not hiring an investigator based on lack of funds, for failing to prepare him to testify, and for failing to explain the process to him. [3]In Jackson v. State, 973 S.W.2d 954, 957 (Tex.Cr.App.1998), the court said: Experience has taught us that in most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not in a shape, perhaps because of the very alleged ineffectiveness below, that would adequately reflect the failings of trial counsel. For this reason, we have held that, when direct appeal has not provided an adequate record to evaluate a claim which might be substantiated through additional evidence gathered in a habeas corpus proceeding, we will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal. [4]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.