Mark Anthony Johnson v. State

NO. 12-05-00417-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS MARK ANTHONY JOHNSON, § APPEAL FROM THE 145TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § NACOGDOCHES COUNTY, TEXAS MEMORANDUM OPINION Mark Anthony Johnson appeals his conviction for sexual assault. In three issues, he argues that the evidence was insufficient to support his conviction and that he received ineffective assistance of counsel. We affirm. Background Appellant met S.F. when she was fourteen years old. S.F. gave Appellant her phone number, and the two talked to one another on the telephone from time to time over the next two years. Initially, Appellant told S.F. that he was eighteen years old, but later told her that he was twenty- five. S.F. was sixteen when they met in person on June 17, 2000. Appellant had his young daughter with him at the time and the three, along with S.F.’s friend Angela Wilson, drove to a gas station and a liquor store together. Appellant bought S.F. gasoline for her car and a pack of cigarettes. They went to Appellant’s mother’s house to drop off his daughter, and then the three went to Appellant’s trailer house. At his house, Appellant provided S.F. and her friend with a soft drink, orange juice, and Crown Royal whisky. S.F. drank a number of shots of the whisky. She was taking prescription medication and soon began to feel the effects of the alcohol. Specifically, S.F. became disoriented and then “blacked out.” She remembered being in a back bedroom and Angela coming to help her. She also remembered telling her friend that Appellant had undone her pants. The next things she remembered were being at a friend’s house and then being at her own house. S.F. could not say whether she had sexual intercourse that night. S.F. said later that her vagina hurt after the incident, although she said that she did not have “internal pain.” S.F.’s friend Angela Wilson was in the trailer house during the incident and consumed one shot of whisky. She saw Appellant take S.F. to a bedroom in the house after S.F. became disoriented. She followed them and saw S.F. lying on the bed with her belt undone. S.F. said, “He’s undoing my pants.” Appellant then physically removed Angela from the bedroom and placed her in the bathroom. Angela went back to the room and was able to see in through the cracked door. Appellant was in his boxer shorts and told S.F. to say that she was “fine.” Appellant then locked Angela out of the bedroom. Angela began to gather their belongings, including compact discs the two had brought and their shoes and keys. After she gathered the things from another bedroom, Angela saw Appellant and S.F. standing in the living room. S.F. was about to cry and seemed to be upset. As they left, S.F. told Angela that Appellant had been “sexually active towards her.” Angela took S.F. to a friend’s house and then to S.F.’s house. S.F.’s parents took her to the police station, and she was later examined in the hospital. The hospital staff collected evidence from S.F. including vaginal swabs that contained semen. S.F. told a nurse that she could not remember if a sexual act occurred but remembered the assailant undoing her jeans and remembered putting her underwear and jeans back on. S.F. also told the nurse that she had told the assailant that she was menstruating and he said that did not mean that he could not “rub on” her. She told the nurse that a tampon was present before the incident but not after and she did not remember taking it out. She also said that her vagina hurt afterwards. Subsequent DNA testing revealed that Appellant was the contributor of the semen. Appellant was indicted for the felony offense of sexual assault. He pleaded not guilty, and a trial was held. The jury found him guilty and assessed punishment at five years of imprisonment. Appellant did not file a notice of appeal. In 2005, the Texas Court of Criminal Appeals granted Appellant’s application for habeas corpus, and allowed him to file an out of time appeal. Ex parte Johnson, Ap. 75,271 (Tex. Crim. App. October 26, 2005) (per curiam) (not designated for publication). This appeal followed. Sufficiency of the Evidence In his first and second issues, Appellant argues that the evidence was insufficient to support his conviction. Specifically, Appellant argues that there was insufficient evidence that he penetrated S.F.’s sexual organ. Standards of Review The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129–30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence without the light most favorable to the verdict, and we determine whether the evidence supporting the verdict is so obviously weak as to undermine our confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23, S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.). Under either standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id. As alleged in the amended indictment, the State was required to prove that S.F. was a child younger than seventeen and not Appellant’s spouse and that Appellant intentionally or knowingly caused the penetration of her sexual organ with his sexual organ. See Tex. Pen. Code Ann. § 22.011 (Vernon 2006).1 Analysis With respect to the sufficiency of the evidence, Appellant argues only that it was not proven that he penetrated S.F.’s sexual organ. In the context of sexual assault, proof of the slightest penetration of any part of the female sexual organ is sufficient to meet the requirement of “penetration.” See Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972); see also Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). There need not be proof of penetration of the vagina, and proof of penetration may be circumstantial. See Vernon, 841 S.W.2d at 409–10; Nilsson, 477 S.W.2d at 595-97. The complaining witness in this case was unable to testify that her sexual organ was penetrated because she did not remember the events. Her friend, who was nearby during the incident, did not testify that she witnessed any penetration. She testified only that Appellant removed her from the room, that S.F. was intoxicated and had her pants undone, and that S.F. said afterwards that Appellant had been sexually active towards her. There is evidence of penetration in the form of Appellant’s semen, which was recovered on a “vaginal swab” taken from S.F. The vaginal canal is well within the female “sexual organ,” and the vagina itself need not be penetrated for there to be a penetration of the sexual organ. See Vernon, 841 S.W.2d at 409–10. Appellant is correct that the testimony describing where the vaginal swabs were taken from is amenable to more than one interpretation. When first discussing the swab, the nurse who witnessed the examination simply called it a “vaginal swab” without further explanation. Later she was asked, “Ma’am, the vaginal swab that you observed taken from the victim . . . was that taken from inside the vagina and inside the vaginal canal?” She answered, “It should have been, yes, ma’am.” Subsequently, she said the swab is generally taken from the vagina. When asked if the swab is “wiped around the outside” of the vagina, the nurse said, “No.” In the strictest sense, this testimony leaves open a possibility that the vaginal swab was taken from somewhere other than the vagina. But we think this reading is too technical and, in the context of the circumstantial evidence, not reasonable. First, the swab was a “vaginal swab.” The record does not indicate that this is a precisely defined medical procedure, but it is on par with saying that an “eye examination” is an examination of the eye. That is to say, the name is a description of the procedure. In the context of the testimony, the jury could have reasonably concluded that the vaginal swab was taken from the vagina. The nurse’s use of the language “should have been” is simply the way some people speak. It can be an equivocation, but it is also a figure of speech, and the jury was in the best position to determine what she meant. The statement could be nothing more than an acknowledgment that the swab could be used for other purposes. When asked if the swab is wiped around the outside of the vagina the witness said, unequivocally, “No.”2 This testimony is not the only evidence of penetration. The complaining witness told two people that her vagina hurt after the incident and made statements about Appellant acting towards her in a sexual manner. Also, and while far from definitive, Appellant’s actions of providing her with intoxicating liquors, taking down her pants, taking off his own pants, removing her friend from the room, and locking the door suggest that he acted to fulfill his sexual desires. Under these circumstances, we conclude that the evidence is sufficient, both legally and factually, to support the verdict. Viewed in a light most favorable to the verdict, a rational jury could have concluded that Appellant’s semen was found in S.F.’s vagina or in a place so closely associated with her vagina that the further conclusion that Appellant penetrated S.F.’s sexual organ would be reasonable. Without the light favoring the verdict, we do not conclude that the great weight and preponderance of the evidence contradicts the verdict. Different finders of fact might interpret the nurse’s testimony in different ways. The evidence supporting the jury’s conclusion that Appellant penetrated S.F.’s sexual organ is not obviously weak or outweighed by contrary proof. The jury was in the best position to interpret the nurse’s testimony, and their synthesis of that testimony and the other evidence was reasonable. We overrule Appellant’s first and second issues. Ineffective Assistance of Counsel In his third issue, Appellant asserts that he received ineffective assistance of counsel. Specifically, he complains that his attorney should have retained an expert either to testify or to assist in the preparation of his cross examination of the State’s witness who analyzed the semen and concluded that Appellant was the contributor. Applicable Law Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An ineffective assistance of counsel claim is not reviewed for isolated or incidental deviations from professional norms, but on the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. The second step requires the appellant to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. We begin with the strong presumption that counsel’s conduct falls with the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we presume counsel’s actions and decisions were reasonable and were motivated by sound trial strategy. See id. Appellant has the burden of proving ineffective assistance of counsel. See id. Generally, the record on direct appeal will be insufficient to prove the deficient performance prong of the Strickland standard. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Analysis Appellant argues that trial counsel should have sought a defense expert “to question the reliability of the state’s evidence, point out issues regarding contamination of samples, and [to] question the accuracy [of] the state’s expert[’s] statistical analysis and the resulting conclusions drawn therefrom of Appellant’s involvement.” There is no evidence in the record of trial counsel’s strategy in this matter. In the absence of evidence about trial counsel’s reasoning, we will generally presume that counsel had a plausible reason for his actions. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). There is no evidence that trial counsel did not consult with an expert witness while preparing for trial. His cross examination of the State’s witness was impeccable, and he required the witness to admit an error in his previous testimony. Even if we assumed that counsel did not consult with an expert, Appellant has not shown deficient performance. In the context of failing to call witnesses, the court of criminal appeals has held that an ineffective assistance of counsel claim can be evaluated only when the proposed testimony is in the record. See Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986) (Counsel’s failure to call a witness is irrelevant absent a showing that the witness was available and appellant would have benefitted from the witness’s testimony.); Bates v. State, 88 S.W.3d 724, 728 (Tex. App.–Tyler 2002, pet. ref'd). This principle has been applied to instances where counsel failed to request an expert witness. See Cate v. State, 124 S.W.3d 922, 927 (Tex. App.–Amarillo 2004, pet. ref'd); Teixeira v. State, 89 S.W.3d 190, 194 (Tex. App.–Texarkana 2002, pet. ref’d); see also Taylor v. State, No. 12-05-00314-CR, 2006 Tex. App. LEXIS 6080, at *12-13 (Tex. App.–Tyler July 12, 2006, pet. ref’d) (mem. op., not designated for publication) (“Appellant has pointed to no deficiency in his counsel’s performance resulting from his lack of assistance by a defense DNA expert.”). Nothing in the record shows that engaging an expert witness would have assisted counsel or allowed him to successfully challenge the State’s evidence. Therefore, we cannot conclude that counsel should have employed an expert to assist with his preparation. With respect to calling an expert as a witness, the previously described principle applies without extrapolation. There is no evidence in the record as to what testimony an expert witness could have offered in this matter, and we cannot conclude that a witness should have been called when the record does not reveal that the witness’s testimony would have helped the defendant. See Butler, 716 S.W.2d at 55. Appellant has not shown that trial counsel’s representation fell below professional norms. We overrule Appellant’s third issue. Disposition We affirm the judgment of the trial court. SAM GRIFFITH Justice Opinion delivered March 7, 2007. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 1 The State need only have alleged that the child’s sexual organ was penetrated by any means or that the child’s sexual organ contacted Appellant’s mouth, anus, or sexual organ. See Tex. Pen. Code Ann. §§ 22.011 (a)(2)(A), (C). Because the statute criminalizes several alternate acts, the State’s election of “penetration” instead of “contact” is meaningful, and the State was required to prove penetration. See Gollihar v. State, 46 S.W.3d 243, 254–55 (Tex. Crim. App. 2001). Because Appellant argues only that there was no proof of penetration, we need not determine if the allegation that the penetration was by his sexual organ was an element of the offense. 2 The expert witness who evaluated the evidence testified that “[o]n vaginal samples, usually what it consists of is a vaginal swab from the orifice.” When read in conjunction with the nurse’s testimony, we take this to mean that a vaginal swab is generally taken from the vagina and that a deviation from that norm would have been noted by the nurse when she was asked.