Hamilton Jr., Herbert v. State

Affirmed and Memorandum Opinion filed August 19, 2003 Affirmed and Memorandum Opinion filed August 19, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00072-CR ____________ HERBERT HAMILTON, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 876248 M E M O R A N D U M   O P I N I O N Appellant Herbert Hamilton, Jr. was convicted of aggravated sexual assault of a child. The jury assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. In three points of error, appellant claims: (1) the trial court erred by denying appellant=s motion for a new trial; (2) the trial court erred by admitting impermissible outcry witness testimony; and (3) the evidence is factually insufficient to support the conviction. We affirm. Background The complainant, C.W., was five years old when appellant came to live with her family. Appellant shared an apartment with C.W., C.W.=s five siblings, and Tamara Woods, C.W.=s mother, for approximately six to seven months. The children all slept in the same bedroom. Appellant slept in the living room, but kept personal effects in the children=s bedroom. In early 2001, six-year-old C.W. first mentioned the sexual assault when appellant=s ex-girlfriend, Roniesha Adams, asked if appellant had ever touched her. Upon C.W.=s confirmation, Adams contacted Woods, who immediately reported the assault to the police. C.W. repeated the outcry, telling her mother that appellant would crawl under the covers in the bed C.W. shared with her three sisters, get on top of her, and place his fingers in her vagina. C.W. then spoke to her maternal aunt, Juslyn Young, who asked C.W. to demonstrate what appellant had done by engaging in role-playing with Young acting as C.W. and C.W. acting as appellant. C.W.=s actions simulated penal to vaginal intercourse. C.W. also told Young that appellant touched her breasts and pelvic area. Woods next took C.W to the Children=s Assessment Center at police request. At the Center, Dr. Margaret McNeese interviewed C.W. and performed a medical examination. C.W. told McNeese that appellant put his hands under her clothes and touched her Atoo-too,@ pointing to her vaginal area, and got on top of her two or three times. The medical exam indicated C.W.=s hymen was abnormal due to clefts, or healed notches, in the five and seven o=clock positions, which is consistent with digital penetration. The State offered the testimony of Dr. Jennifer Welch, the Director of Psychological Services and Research at the Children=s Assessment Center, who stated children often give different accounts of the alleged abuse and inconsistent accounts would not necessarily cause her to doubt the child=s statements. On cross-examination, Welch admitted child victims may testify untruthfully in court because they feel they must testify consistently with a previous story. While on cross-examination, Welch also expressed her belief that when a child claims abuse, more often than not, it has occurred. At the close of the State=s case, appellant rested without presenting evidence. The jury found appellant guilty. The State presented evidence at the punishment hearing of appellant=s previous conviction for sexual assault, which was alleged in the indictment=s enhancement paragraph. After sentencing, appellant timely filed a motion for new trial, alleging he received ineffective assistance of counsel. The trial court overruled the motion without a hearing. In accordance with an abatement order issued by this court, on February 21, 2003, the trial court held a hearing on appellant=s motion for new trial and again denied the motion. Ineffective Assistance of Counsel In his first issue, appellant contends the trial court erred in denying his motion for a new trial based on ineffective assistance of counsel at trial. Appellant complains trial counsel failed to: (1) interview witnesses; (2) investigate prior Child Protective Service (ACPS@) reports involving the complainant=s family; and (3) present expert testimony. To prevail on a claim of ineffective assistance of counsel, an appellant must first show that counsel=s performance was deficient, i.e., it fell below an objective standard of reasonableness, and second, that the appellant was prejudiced in that there is a reasonable probability that but for counsel=s errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). To be sustained, an allegation of ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied 519 U.S. 1119 (1997). In reviewing an ineffectiveness claim, a court need not determine whether counsel=s performance was deficient if it is easier to dispose of the challenge based on lack of prejudice. Strickland, 466 U.S. at 697. A defendant is not entitled to perfect or errorless counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). Moreover, in reviewing ineffectiveness claims, scrutiny of counsel=s performance must be highly deferential. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 713. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel=s perspective at the time. Strickland, 466 U.S. at 689. A motion for new trial is a prerequisite to presenting a point of error on appeal where it is necessary to adduce facts not in the record. Tex. R. App. P. 21.2. A trial court=s ruling denying a defendant=s motion for new trial is reviewed for abuse of discretion. Salazar v. State, 38 S.W.2d 141, 148 (Tex. Crim. App. 2001). Failure to Interview Witnesses Appellant asserts he received ineffective assistance of counsel because trial counsel failed to interview or call witnesses who could have testified regarding the home environment and the other children who shared a bed with the complainant at the time the assault occurred. Appellant further alleges counsel failed to interview the State=s witnesses, Woods, Young, and McNeese, prior to trial. Appellant argues the failure to interview these witnesses precluded counsel from calling other potentially helpful witnesses. Trial counsel has a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. See Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). However, the failure to call a witness is irrelevant absent a showing such witnesses were available and the defendant would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Melancon v. State, 66 S.W.3d 375, 381 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Concerning counsel=s failure to call witnesses to testify about the home conditions, appellant fails to specifically name which witnesses should have been called. Appellant also fails to detail the witnesses= availability or potential testimony. Further, although appellant argues counsel was ineffective for failing to interview, before trial, the children sharing C.W.=s bed, the record is silent on how these children=s potential testimony would have benefitted or advanced appellant=s position. Accordingly, we cannot find counsel=s representation ineffective for failure to interview or introduce the testimony of these witnesses. King, 649 S.W.2d at 44; Melancon, 66 S.W.3d at 381. Finally, regarding counsel=s failure to interview the State=s witnesses, a claim that trial counsel might have discovered helpful witnesses through these interviews is an inadequate showing of prejudice. See Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999) (finding appellant failed to establish prejudice from counsel=s failure to interview State=s only witness). Appellant therefore has not satisfied the prejudice prong of Strickland. See Strickland, 466 U.S at 693; Kober, 988 S.W.2d at 233. Failure to Obtain CPS Records Appellant=s second contention of ineffective assistance of counsel concerns counsel=s failure to investigate prior CPS reports involving the Woods family. In appellant=s pro se motion for disclosure of CPS records, he argued that the records contained contradictory statements made by the complainant and information regarding a neglect investigation of C.W.=s mother. In his affidavit, trial counsel explained he had no indication prior to trial that the records would have been material or admissible. As such, they were not a part of any trial strategy. When reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Generally, CPS records are confidential and subject to disclosure only when essential to the administration of justice. Tex. Fam. Code Ann. ' 261.201 (Vernon 2002). Here, the records related to a separate neglect investigation of the complainant=s mother. The only connection to the sexual abuse claim were statements made by C.W. to a caseworker denying having been touched in May and August of 2000, which is not entirely inconsistent with her testimony that she was abused over a period from April to December 2000. Trial counsel=s affidavit shows he chose not to pursue this evidence because of uncertainty about its materiality and admissibility. This is a matter of trial strategy and as such does not generally establish ineffective assistance. See generally Melancon, 66 S.W.3d at 375. Appellant=s motion did not provide a reasonable basis to conclude otherwise. Therefore, appellant has not rebutted the presumption that his attorney=s decision not to pursue the CPS records was within the range of competent representation. See Thompson v. State, No. 73128, 2003 WL 21466925 (Tex. Crim. App. Jun. 25, 2003). The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. Miniel v. State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992). Failure to Present Expert Testimony Lastly, appellant alleges counsel=s assistance was ineffective because counsel failed to secure an expert to testify at trial to rebut Dr. Welch=s testimony. At trial, Welch testified children very rarely falsely accuse someone of sexual assault. According to appellant, expert testimony was necessary to overcome Welch=s testimony and to assist counsel in his cross-examination of the State=s other witnesses. Appellant claims failure to present expert testimony denied him the ability to (1) further a defense that he did not cause the injuries sustained by C.W., and (2) challenge Welch=s expert testimony regarding when false accusations might occur. In support of his motion for new trial, appellant attached an affidavit from a psychologist, Dr. Carmen Petzold. Petzold=s affidavit analyzed the testimony given at trial and pointed out areas that could have been explored on cross-examination. Petzold concluded that without an expert witness, trial counsel could not have adequately cross-examined the witnesses on false-positive allegations of sexual abuse[1]. While Petzold=s affidavit points out areas that could have been explored in cross- examination, it provides little more than alternative strategies for trial counsel. The affidavit does not offer an alternative explanation of the evidence that advances a particular defense not discovered or presented by trial counsel. See Butler, 716 S.W.2d at 54 (stating counsel=s failure to seek out and interview witnesses is ineffective where any viable defense is not advanced); Ervine v. State, No. 08-00-00129-CR, 2002 WL 595044, *4 (Tex. App.BEl Paso 2002, no pet.) (not designated for publication). Rather, appellant=s supporting affidavit only addresses how an expert could have assisted trial counsel in cross-examining the State=s witnesses. The record indicates trial counsel conducted a thorough cross-examination of both of the State=s expert witnesses. He questioned McNeese about inconsistencies with her testimony, her report, C.W.=s confusion with the words Aon@ and Ain@ when recalling the assault, and elicited an admission that C.W. never claimed appellant touched her with anything other than his hands amidst allegations of penile penetration. Counsel=s cross-examination of Welch was equally effective. Welch testified a child victim may lie about sexual assault or feel locked into telling a consistent story; this testimonyCexactly the point Petzold asserts should have been pursuedCweakened C.W.=s testimony. In light of the record before us, we are unable to find counsel=s conduct deficient. See Strickland, 466 U.S. at 687. Accordingly, appellant=s first point of error is overruled. Outcry Witness In his second point of error, appellant asserts the trial court erred in failing to comply with Texas Code of Criminal Procedure article 38.072 in (1) allowing Young to testify as an outcry witness and (2) failing to hold a hearing on the statement=s reliability. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). We examine each of appellant=s grounds separately. Article 38.072 provides an exception to the hearsay rule, commonly known as the Aoutcry exception,@ for a hearsay statement made by a child abuse victim. Tex. Code Crim. Proc. Ann. art. 38.072 ' 2(a)(1) (Vernon Supp. 2003). In the prosecution of an offense committed against a child twelve years of age or younger, article 38.072 allows admission of statements that: (1) describe the alleged offense; (2) were made by the child against whom the offense was allegedly committed; and (3) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense. Id. __ 1B2(a). Under this rule, the hearsay statement is admissible if: (1) the State provides timely notice to the defendant of its intention to introduce an outcry statement; (2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and (3) the child testifies or is available to testify at trial. Id. ' 2(b)(1)B(3). At trial, appellant lodged a single Ahearsay, not outcry@ objection when Young was first prompted to repeat what C.W. told her. After the trial court overruled the objection, Young proceeded to testify in detail about C.W.=s statements and actions. During direct examination, Young stated that while role playing, C.W. stated appellant (1) had touched her on her Abutt;@ (2) kissed and touched her on her chest; (3) touched her vaginal area; and (4) Astuck something inside her.@ Through further testimony, Young relayed her observation that C.W.=s action mimicked vaginal intercourse. Although counsel interjected a Anon-verbal hearsay@ objection at the onset of Young=s testimony on C.W.=s actions, counsel failed to object at anytime while Young was testifying in detail as to what C.W. said. Additionally, during C.W.=s examination, the State asked at length what she had told Young regarding the assault. Counsel again failed to object and even pursued a similar line of questioning on cross-examination. Defense counsel must object every time allegedly inadmissible evidence is offered unless counsel (1) obtains a running objection or (2) requests a hearing outside the presence of the jury. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); see Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also Long v. State, 821 S.W.2d 216, 217 (Tex. App.CHouston [14th Dist.] 1991, no pet.). Trial counsel failed to seek either a running objection or a hearing and did not continue to object to the admission of this evidence. Therefore, appellant has waived error. See Martinez, 98 S.W.3d at 193; Long, 821 S.W.2d at 217. Furthermore, any error resulting from the admission of this evidence was rendered harmless when other evidence was admitted detailing the same facts. See Long, 821 S.W.2d at 217. Although appellant concedes the State properly complied with the article 38.072 notice and victim availability requirements, he argues the trial court erred in failing to conduct a reliability hearing on C.W.=s statement to Young. See Tex. Code Crim. Proc. Ann. art. 38.072 _ 2(b)(2) (Vernon Supp. 2003). We find appellant=s objection of Ahearsay, not outcry@ properly apprised the trial court of the basis of his complaint that a hearing must be held under article 38.072. See Lankston v. State, 827 S.W.2d 907, 911 (Tex. Crim. App. 1992); Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (holding appellant did not waive error by failing to specifically cite to statute or request a hearing). Contrary to the State=s contentions, the requirements of article 38.072 are mandatory. Long, 800 S.W.2d at 547; Duncan v. State, 95 S.W.3d 669, 671 (Tex. App.CHouston [1st Dist.] 2002, pet. filed). The trial court abused its discretion by admitting Young=s testimony without first conducting a hearing on the reliability of the statement. See Duncan, 95 S.W.3d at 671; Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App.CFort Worth 2002, pet. ref=d). Finding the trial court erred, we must now determine if the admission of improper evidence prejudiced appellant. Nonconstitutional error is not reversible if it does not affect an appellant=s substantial rights. Tex. R. App. P. 44.2. Substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury=s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). The admission of inadmissible hearsay constitutes nonconstitutional error and will thus be considered harmless if, after examining the record as a whole, we are reasonably assured the error did not influence the jury verdict or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Likewise, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. Dewberry v. State, 4 S.W.3d 735, 754 n.18 (Tex. Crim. App. 1999). In reviewing the great weight of the evidence, we find any error in admitting the evidence was harmless in light of properly admitted evidence. See Johnson, 967 S.W.2d at 417. Not only did C.W., uninterrupted by any objections from appellant, thoroughly testify about the details of the digital penetration, but her mother also testified as to C.W.=s outcry of digital penetration without objection. Additionally, McNeese testified about C.W=s statement that appellant touched her Atoo-too,@ (pointing to her vaginal area) with his hands under her clothes and got on top of her two or three times. Lastly, McNeese testified that she found injuries to C.W.=s hymen consistent with digital penetration. Because we find the error to be harmless, we overrule appellant=s second point of error. Factual Sufficiency Appellant=s third point of error challenges the factual sufficiency of the evidence supporting the conviction. We conduct a factual sufficiency review by asking whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine 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). We may set aside the jury=s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Although we review the fact finder=s weighing of the evidence, and we are authorized to disagree with the fact finder=s determination, our evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. In particular, we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8. Appellant claims the evidence is insufficient to support the verdict because it is based upon the complainant=s testimony, which appellant alleges is not credible or reliable. Specifically, appellant points to C.W.=s testimony that the abuse occurred every night until she was seven years old when, in fact, C.W. did not turn seven until two months after appellant was arrested. Appellant also highlights that C.W. stated she did not understand Adams=s (the first person C.W. told of the abuse) questions involving whether appellant had touched her and that C.W. identified two different men as her father. To be guilty of aggravated sexual assault of a child, appellant must intentionally and knowingly cause the penetration of the female sexual organ of a child by any means if the victim is younger than 14 years of age. See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2002). In view of C.W.=s testimony, the testimony of the other State=s witnesses, and the medical evidence and testimony presented at trial, we find the evidence factually sufficient. Although the complainant=s testimony contained minor inconsistencies and errors, we do not find the verdict so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Furthermore, we defer to the jury=s determination of credibility in evaluating the weight of testimony. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We overrule appellant=s third point of error. The judgment of the trial court is affirmed. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed August 19, 2003. Panel consists of Justices Yates, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant cites Rylander v. State, 75 S.W.3d 119 (Tex. App.CSan Antonio 2002), rev=d, 101 S.W.3d 107 (Tex. Crim. App. 2003), in support of his argument that the failure to secure expert testimony was ineffective. In Rylander, the court found ineffective assistance of counsel for failing to present expert testimony. Id. at 123B25. However, the Court of Criminal Appeals recently reversed the lower court=s holding based on an insufficient record. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Therefore, we do not find Rylander persuasive.