Dodson II, Dennis Gregory v. State

Affirmed and Memorandum Opinion filed June 29, 2006 Affirmed and Memorandum Opinion filed June 29, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00178-CR ____________ DENNIS GREGORY DODSON II, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 278th District Court Grimes County, Texas Trial Court Cause No. 15,113 M E M O R A N D U M   O P I N I O N Appellant, Dennis Gregory Dodson II, appeals from his conviction for aggravated perjury. A jury found him guilty, and the trial court sentenced him to ten years= imprisonment. In two issues, appellant contends that he received ineffective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm. Background Appellant and Lucinda Dodson were married and had three children. In 2002, Lucinda met Michael Payne at her place of employment and they began a relationship. Lucinda decided to move out of the home she shared with appellant and to move in with Payne. At the time, Payne lived with his sister, so Lucinda and Payne temporarily stayed in a motel room. The first night they stayed there, Lucinda=s and appellant=s two youngest children stayed with them. The motel room had only one bed in which the children, Lucinda, and Payne slept. Both Lucinda and Payne testified that they were all fully clothed and that only the children slept under the bed covers. The next day, Lucinda permitted the children to visit her sister-in-law. Later, the youngest child reported to appellant that her vagina hurt when she urinated. Appellant subsequently reported to the police that Payne had sexually assaulted the child. Law enforcement officers arranged to have the child examined at Scottie=s House, an advocacy center that conducts medical examinations and interviews of child victims of sexual abuse. During an interview at Scottie=s House, the child indicated that Payne had touched her vagina. The medical examination revealed a labial adhesion, which is not uncommon in young girls. The nurse practitioner who performed the examination testified that a labial adhesion is inconsistent with a single incident of sexual assault and is most often caused by poor hygiene. The grand jury subsequently considered sexual assault charges against Payne.[1] Appellant testified before the grand jury that his daughter said that Payne had touched her. Appellant later admitted to Lucinda that he told the child to lie about Payne because he was angry that Lucinda had left him. At his perjury trial, appellant testified that he told Lucinda that he had instructed his daughter to lie only because Lucinda told him that she would come back to him. Ineffective Assistance of Counsel In two issues, appellant contends that he received ineffective assistance in that his trial counsel failed to object to inadmissible evidence. To prove ineffective assistance of counsel, appellant must demonstrate that his counsel=s performance was deficient because it fell below an objective standard of reasonableness, and that there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). Whether this standard has been met is to be judged by the totality of the representation rather than by isolated acts or omissions of counsel. Rodriguez, 899 S.W.2d at 665. Appellant must prove ineffectiveness by a preponderance of the evidence. Id. There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel acted in the way that he did. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the absence of evidence regarding counsel=s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). Here, appellant did not allege ineffective assistance in a motion for new trial, and the record contains no explanation for counsel=s conduct. We may therefore reverse only if Athe 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). In his first issue, appellant argues that his trial counsel rendered ineffective assistance by failing to object to a tape recording of a telephone conversation on grounds that the conversation was a privileged communication between husband and wife. Deputy Sheriff Angela Shroeder testified that after the child reported that appellant told her to lie, the investigators decided to record a telephone conversation among Payne, Lucinda, and appellant. Payne telephoned appellant at appellant=s place of employment. Payne asked appellant why he continued to lie about the alleged sexual assault. Appellant said that he was not lying, and he was angry that Payne had been seeing Lucinda. After a heated conversation, Payne asked if appellant would like to speak with Lucinda, and he gave her the telephone. Lucinda asked appellant why he was lying and said that if he told the truth, she would come back to him. After repeated denials, appellant admitted lying because he was angry with Payne and Lucinda. The tape was played for the jury without objection. When appellant testified at trial, he claimed that he said he had told the child to lie only because Lucinda had promised to come back to him. Appellant contends that his conversation with Lucinda was protected by the confidential communication privilege found in Texas Rule of Evidence 504. Rule 504 provides that a person has a privilege during marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person=s spouse while they were married. Tex. R. Evid. 504(a). There are, however, recognized exceptions to the rule that communications between spouses are absolutely privileged. One such exception involves statements between husband and wife that are overheard by third persons. Zimmerman v. State, 750 S.W.2d 194, 199 (Tex. Crim. App. 1988); Weaver v. State, 855 S.W.2d 116, 121 (Tex. App.CHouston [14th Dist.] 1993, no pet.). Communications overheard by a third party lose their confidential character. Zimmerman, 750 S.W.2d at 199. In this case, the tape recording is identified as a conversation among Payne, appellant, and Lucinda. There is no indication on the tape whether or not Payne overheard the conversation between Lucinda and appellant. Therefore, the record does not establish that admission of the tape recording would have been prohibited by Rule 504. Furthermore, there may have been strategic reasons for not objecting to the admission of the tape-recorded conversation, including the admission of appellant=s repeated denials that he had told the child to lie. However, we may not speculate on counsel=s motives in the face of a silent record. See Thompson, 9 S.W.3d at 814. Accordingly, we cannot say that defense counsel=s conduct was Aso outrageous that no competent attorney would have engaged in it.@ See Garcia, 57 S.W.3d at 440. We overrule appellant=s first issue. In his second issue, appellant complains of his counsel=s failure to object to hearsay testimony. Deputy Shroeder testified that Lucinda told her that the child admitted that appellant had told her to report Payne=s assault. Appellant failed to object to that statement. Shroeder further testified that appellant=s other child, who also spent the night in the motel room, was also instructed by appellant to lie. Appellant objected to the testimony about the other child, and the trial court sustained the objection. Further, Payne testified that the child admitted that appellant had told her to lie. Appellant did not object to Payne=s testimony. Appellant complains that his trial counsel failed to object to the hearsay testimony of Shroeder and Payne. There may have been strategic reasons for not objecting to Shroeder=s and Payne=s testimony, but we may not speculate on counsel=s motives in the face of a silent record. See Thompson, 9 S.W.3d at 814. Furthermore, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Garcia v. State, 106 S.W.3d 854, 860 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d), cert. denied, 541 U.S. 1013 (2004). Evaluating the attorney=s choices made during trial would require us to second‑guess his strategy through hindsight, an exercise which cannot support a finding of ineffective assistance. Longoria v. State, 148 S.W.3d 657, 659 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). We overrule appellant=s second issue. The judgment of the trial court is affirmed. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed June 29, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The record is silent as to the outcome of this proceeding.