Fritz Allen Furtick v. State

NUMBER 13-03-352-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ FRITZ ALLEN FURTICK, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 117th District Court of Nueces County, Texas. __________________________________________________________________ MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Rodriguez Appellant, Fritz Allen Furtick, was tried before a jury and convicted of aggravated sexual assault of a child as a repeat felony offender. See Tex. Pen. Code Ann.§ 22.021 (Vernon 2003). The trial court assessed a sentence of sixty years imprisonment. The trial court has certified that this “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). By two issues, appellant contends that (1) he was denied a fair jury trial because of statements made by the prosecution during the State’s argument, and (2) he was denied effective assistance of counsel. We affirm. I. FACTS As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4. II. DENIAL OF FAIR JURY TRIAL By his first issue, appellant contends that he was denied a fair jury trial when the prosecution, during opening and closing argument, (1) called appellant a “predator” when there was no evidence in the record to support the statement, and (2) highlighted appellant’s failure to testify or present evidence by commenting that appellant was the one saying the complainant was lying. Appellant, however, failed to object to “the complained-of jury arguments and therefore forfeited his right to raise any alleged error on appeal.” Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (defendant must object and pursue objection to adverse ruling in order to complain about erroneous jury argument on appeal)); see Tex. R. App. P. 33.1. Accordingly, appellant’s first issue is overruled. III. INEFFECTIVE ASSISTANCE OF COUNSEL By his second issue, appellant contends that trial counsel was ineffective for: (1) failing to object to improper argument by the prosecution; (2) failing to object to the admission of videotaped testimony; (3) failing to hire an expert witness; and (4) failing to request an instruction for the lesser-included offense of indecency with a child. A. Standard of Review The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant’s sixth amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.–Corpus Christi 2000, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.–Corpus Christi 2000, pet. ref’d). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Munoz, 24 S.W.3d at 343; Stone, 17 S.W.3d at 350. An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel’s alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.–Corpus Christi 1996, no pet.). We must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 711 (Tex. Crim. App. 1994). In the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). B. Failure to Object to Improper Arguments Appellant complains trial counsel was ineffective for failing to object to prosecution (1) calling appellant a “predator,” and (2) commenting that appellant was saying the complainant was lying. There are four permissible areas of jury argument: (1) summation of the evidence presented at trial; (2) reasonable deduction from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). “Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.” Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). “[T]he jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error.” Id. Concerning the prosecutor’s reference to appellant being a “predator,” the evidence shows that appellant sexually assaulted a young girl left in his care. The State submits that it was a fair and reasonable deduction to characterize appellant as a “predator.” A prosecutor can characterize a defendant if it is a proper summation and a reasonable deduction from the evidence. See Collins v. State, 2 S.W.3d 432, 437 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d) (allowing prosecutor to call defendant a “predator who preyed on women with small children”); Belton v. State, 900 S.W.2d 886, 898 (Tex. App.–El Paso 1995, pet. ref’d) (allowing prosecutor to refer to defendant as an “animal” when it was shown he would force his way into victims’ homes and proceed to beat and terrorize victims and then shoot family members). Therefore, we conclude the State’s jury argument could reasonably be construed as a fair summary of the evidence. Appellant also contends that trial counsel was ineffective for failing to object when the prosecution argued to the jury that appellant said the complainant was lying. However, the record is silent as to the reasons for counsel’s decision not to object to the prosecution’s arguments. Because of the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance and that such conduct might be sound trial strategy, see Garcia, 57 S.W.3d at 440, we conclude that appellant has failed to meet the first prong of Strickland. See Strickland, 466 U.S. at 687. C. Failure to Object to Admission of Videotape Appellant also contends that trial counsel was ineffective because she failed to object to the admission of the videotape which contained the interview of the complainant, although complainant later testified at trial. Again, the record is silent as to the reasons for counsel’s decision not to object to the admission of the videotape. Absent such explanation, appellant has failed to overcome the presumption of sound trial strategy. See Garcia, 57 S.W.3d at 440. Trial counsel, in her closing arguments, used the videotape to attack the credibility of the complainant’s trial testimony. She also used the videotape to argue that the State had failed to prove its case beyond a reasonable doubt since the videotape did not include a clear statement of the sexual conduct alleged in the indictment or in complainant’s trial testimony. The record shows that counsel used the videotaped interview in an attempt to raise reasonable doubt as to appellant’s guilt. Under the applicable standard of review, there is a heavy presumption that the decision not to object to the videotaped testimony was strategic. Id. Therefore, we conclude that appellant failed to meet his burden of establishing the first prong of Strickland. See Strickland, 466 U.S. at 687. D. Failure to Obtain an Expert Witness Appellant next contends that his trial counsel was ineffective because she failed to obtain a necessary expert witness. Generally, trial counsel’s failure to call witnesses is irrelevant unless appellant shows that such witnesses were available and would be able to provide beneficial testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.–Austin 2000, pet. ref’d). When an appellant complains of trial counsel’s failure to call an expert witness, he must show that the expert would have testified in a manner beneficial to him. See McCain v. State, 995 S.W.2d 229, 246 (Tex. App.–Houston [1st Dist.] 1999, no pet.); Cate v. State, 124 S.W.3d 922, 928 (Tex. App.–Amarillo 2004, pet. ref’d). In this case, appellant failed to show how the testimony of an expert witness would have provided beneficial testimony. Furthermore, appellant contends that trial counsel “simply failed to request [an expert witness] or did not know how to request one at the expense of the State.” Our review of the record reveals, however, that trial counsel did in fact file a motion requesting the trial court to appoint an expert witness. The motion was granted, and the trial court allocated up to $1000.00 for the appointment of an expert witness to assist in the preparation of the defense. The record further indicates that trial counsel attempted to retain the services of at least six possible expert witnesses. All but one of the expert witnesses contacted by trial counsel did not take court-appointed cases. The one expert willing to take on the case required a minimum retainer fee of $5,000.00. Accordingly, appellant’s contention is without merit. Again, appellant has failed to satisfy the first prong of Strickland. See Strickland, 466 U.S. at 687. E. Failure to Request Instruction on Lesser Included Offense Appellant’s final contention is that his counsel was ineffective in failing to request a jury instruction on the lesser included offense of indecency with a child. Appellant contends that since there was no evidence of penetration, the trial court would have been obligated to give an instruction on indecency with a child if trial counsel had asked for such an instruction. The indictment, however, charged appellant with aggravated sexual assault of a child through “contact” and not penetration. See Tex. Pen. Code Ann.§ 22.021(a)(1)(B)(iii) (Vernon 2003); Cagle v. State, 976 S.W.2d 879, 882 (Tex. App.–Tyler 1998, no pet.) (giving ordinary meaning to the term “contact” as used in the Texas Penal Code). Complainant testified that appellant caused his sexual organ to make contact with hers. Since the offense, as charged in the indictment, was supported by evidence, we find appellant has not established that his attorney’s representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687. F. Different Result Not Established In addition to the foregoing, appellant has also failed to meet the second prong of the Strickland test that but for the errors of appellant’s trial counsel, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687. Thus, we conclude appellant was not denied effective assistance of counsel. We overrule appellant’s second issue. IV. CONCLUSION Accordingly, we affirm the judgment of the trial court. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 22nd day of July, 2004.