Dan Wortham v. State

Opinion issued January 5, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00899-CR and 01-10-00900-CR ——————————— Dan Wortham, Appellant V. The State of Texas, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1276557 and 1135810 MEMORANDUM OPINION A jury convicted Dan Wortham of two offenses of aggravated sexual assault of a child under the age of fourteen[1] and sentenced him to ten years’ confinement for each offense, with a recommendation for community supervision. In two issues, Wortham complains that the trial court erred by admitting hearsay evidence and that he did not have effective assistance of counsel at trial because his trial counsel failed to limit the “outcry” hearsay evidence admitted and to object to inadmissible hearsay evidence regarding an extraneous offense. We affirm. Factual Background The jury found that Wortham sexually abused his step-daughter, L.F. After L.F. moved to Washington to live with her father, she told a friend’s mother, Jennifer, about the abuse. L.F. later told her step-mother, Heather, who informed L.F.’s father. He called the police. The State charged Wortham with two counts of aggravated sexual assault of a child. At trial, the State’s case included testimony from L.F., Heather, Jennifer, and Deputy B. Folsom, who investigated the matter in Washington. In her testimony, L.F. described the progressive nature of the abuse, which began when she was five or six years old. She testified that it usually occurred in the living room, on the couch. She recounted that Wortham would begin tickling her and then progress to touching her. She stated that Wortham would pull down her underwear or place his hand inside them to touch her vagina. She testified that he touched her inside of her vagina and that he touched her breasts once she started to develop breasts. She testified that the abuse occurred nearly every other weekend, when she visited her mother’s house. The abuse was so frequent that she was unable to describe every incident. According to L.F., the abuse changed over time. Wortham began placing his mouth on her vagina, instead of only using his fingers, and later attempted to place his penis in her vagina. She testified that when he attempted intercourse, she would turn away or try to stop him, and he would then stop. She testified that as she got older, she began to realize that what was happening should not be happening, stating that she would feel “disgusted” and “gross” and would cry. She also testified about revealing her sexual abuse to the mother of a friend, Jennifer, and a few months later, to her step-mother, Heather. She described these conversations as not involving details about the abuse. She testified about her interviews with Deputy Folsom, stating that they were difficult for her because she had never disclosed the details of the abuse to anyone. Wortham’s counsel cross-examined L.F. extensively about her recollection of events and her conversations with Jennifer, Heather, and Deputy Folsom. He questioned her about perceived variances in her recollection of the events and about details or events she revealed later but did not mention in her interview with Deputy Folsom. Jennifer testified that L.F. revealed to her that she had been sexually abused by her step-father and began to cry uncontrollably. Jennifer stated that L.F. was too upset to provide any additional details about the abuse. Wortham’s counsel did not object to this testimony. Heather also testified about the conversation in which L.F. disclosed the sexual abuse to her. L.F. told Heather that Wortham had been touching her but did not reveal any specific details. Wortham’s counsel made no objection to this testimony. After L.F.’s father contacted the police, Deputy Folsom conducted two interviews with L.F. He testified in detail about those interviews. L.F. was fifteen at the time of the interviews. She told Deputy Folsom that the abuse began when she was between four and six, with Wortham touching her on spots he was not supposed to touch—her breasts and vagina. She said that this would occur in different places in the house, including the living room couch, and that she was usually under a blanket when it happened. Deputy Folsom testified that L.F. told him that this was happening almost every weekend she spent with her mother and step-father. She described her step-father placing his mouth on her vagina and showing her his penis. Deputy Folsom further testified that L.F. told him that the abuse began to escalate the summer she stayed with her step-father in Austin, Texas. Wortham began to try to have intercourse with her. She told Deputy Folsom that Wortham tried to place his penis in her vagina, but it hurt. She said that she would ask Wortham to stop or would turn away, and sometimes he would leave her alone after that. Other times, he would continue to place his mouth on her vagina. She also told Deputy Folsom that this happened when they visited her step-father’s mother in Wimberly, Texas. Deputy Folsom testified that, upon prompting, L.F. stated that Wortham penetrated her vagina with his finger. She said that this all occurred before she was twelve. Deputy Folsom testified that she said Wortham continued to try to have sex with her more and more. She described the last incidence of abuse to Deputy Folsom, which involved Wortham placing his mouth on her vagina, as occurring when she was approximately fourteen. Deputy Folsom also testified that L.F. told another deputy that she and Wortham had intercourse. Wortham’s trial counsel did not object to Deputy Folsom’s hearsay testimony. The jury found Wortham guilty on both counts of aggravated sexual assault of a child under the age of fourteen and sentenced him to ten years’ confinement on each count. The jury found that Wortham had never been convicted of a felony before and recommended community supervision of the sentence. Admissibility of Outcry Testimony A. Standard of review Generally, a trial court’s decisions as to the reliability of outcry testimony and whether such testimony is admissible under article 38.072 are reviewed for an abuse of discretion. Carty v. State, 178 S.W.3d 297, 305 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Article 38.072’s procedural requirements, however, are mandatory rather than discretionary. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). B. Wortham failed to preserve error at trial The testimony offered from Jennifer, Heather, and Deputy Folsom regarding L.F.’s statements to them is hearsay—out-of-court statements offered in evidence to prove the truth of the matter asserted. See Tex. R. Evid. 801. Hearsay testimony is generally inadmissible at trial. See Tex. R. Evid. 802–803. The Code of Criminal Procedure, however, creates an exception to this general rule. See Tex. Code Crim. Proc. Ann. art. 38.072 (West 2011). Under certain circumstances, witnesses are permitted to testify as to “outcry” statements made to them by the victim. See id. Wortham does not deny that the outcry testimony from Jennifer, Heather, and Deputy Folsom falls within article 38.072’s hearsay exception. Instead, he asserts that the trial court erred in admitting the testimony because the State did not comply with article 38.072’s procedural requirements for invoking the exception and because there can only be one outcry witness. Article 38.072 sets forth three procedural prerequisites for the admission of a child’s hearsay statement under the article: (1) at least fourteen days before the proceeding begins, the party intending to offer the statement must notify the adverse party of its intention, name the witness through whom it intends to offer the statement, and provide a written summary of the statement; (2) the trial court must find, 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 must testify or be available to testify at the proceeding or by any other manner provided by law. See id. art. 38.072, § 2(b). These procedural requirements are mandatory for the admission of such hearsay statements. Long, 800 S.W.2d at 547. Wortham admits that the State provided him with notice of its intent to use outcry testimony from Heather and Deputy Folsom but asserts that the State failed to provide notice with respect to Jennifer. Wortham also asserts that trial court failed to hold a hearing to determine the reliability of the outcry statements. Finally, Wortham complains that only one outcry witness should have been permitted to testify. The State responds that Wortham has waived these complaints by failing to make the necessary objections at trial. The State also contends that the testimony offered from Jennifer and Heather was not offered under article 38.072, and it was therefore not required to comply with the article’s procedures with respect to that testimony. But the State offers no alternative basis on which the trial court could have properly admitted Jennifer’s and Heather’s hearsay testimony. With respect to Deputy Folsom, whose testimony the State asserts was admissible under article 38.072, the State does not deny or otherwise address Wortham’s contention that the trial court failed to hold the necessary hearing to determine the reliability of the statement. Ordinarily, a trial court commits error by admitting testimony under article 38.072 without first complying with the hearing requirement. See Moore v. State, 233 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Duncan v. State, 95 S.W.3d 669, 671–72 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Additionally, the State has offered no basis upon which the trial court could have properly admitted the hearsay testimony from Jennifer and Heather, since the State admits that it was not offered under the “outcry exception.” But Wortham did not request an article 38.072 hearing, object to the lack of a hearing, or object to the admission of the hearsay testimony at trial. He has therefore waived any error by the trial court in admitting the hearsay testimony. See Diaz v. State, 125 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that appellant waived error by failing to object to denial of article 38.072 hearing); see also Tex. R. App. P. 33.1 (setting forth requirements for preservation of error). We overrule Wortham’s first issue. Adequacy of Representation A. Standard of review Both the United States Constitution and the Texas Constitution guarantee individuals the right to assistance of counsel in a criminal prosecution. See U.S. Const. amend. VI; Tex. Const. art. 1, § 10. “The right to counsel requires more than the presence of a lawyer; it necessarily requires the right to effective assistance.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 (1970); Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 77 (1932)). Effective assistance is not errorless representation but, rather, objectively reasonable representation. Id. To prevail on his claim of ineffective assistance of counsel, Wortham must show that: (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense. Id. (repeating the test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). Courts of appeals must make a “strong presumption that counsel’s performance fell within the wide range of reasonably professional assistance.” Robertson v. State, 187 S.W.3d 475, 482 (Tex. Crim. App. 2006); Martinez v. State, 313 S.W.3d 358, 364 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). To overcome that presumption, a defendant must show that the challenged action could not be considered sound trial strategy under the circumstance. Martinez, 313 S.W.3d at 364 (citing Strickland, 446 U.S. at 689, 104 S. Ct. at 2065). Allegations of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). If the record is silent on trial counsel’s reasoning or strategy, we must presume that his action was strategic. Id. at 814. The record on direct appeal rarely provides the reviewing court an opportunity to conduct a fair evaluation of the merits of an ineffective assistance of counsel claim. Randon v. State, 178 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2005, no pet.). If the record does not establish that trial counsel’s conduct fell below reasonable professional standards, we cannot speculate to find trial counsel ineffective. See Wood v. State, 260 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2008, no pet.). B. The record does not establish ineffective assistance of counsel Wortham contends that his trial counsel “was ineffective because he failed to object and raise the provisions of [article 38.072] and limit the amount of hearsay that could be admitted.” He asserts that trial counsel should have objected to the admission of outcry testimony in the absence of a hearing and, with respect to Jennifer’s testimony, notice. He also asserts that trial counsel should have objected to Deputy Folsom’s testimony about L.F.’s statements to him about certain abuse as extraneous offenses and to his testimony about L.F.’s statement to another deputy that she and Wortham had intercourse as hearsay. He contends that, “[b]ecause the only issue at trial was the complainant’s credibility, trial counsel’s failure to object to such extensive improper testimony can only be characterized as falling below an objective standard of reasonableness.” We disagree that trial counsel’s failure to object to this testimony necessarily falls outside of the “wide range of reasonably professional assistance.” Robertson, 187 S.W.3d at 483. To the contrary, the record demonstrates what could be a sound trial strategy. One defense theory presented at trial was that L.F. fabricated her allegations to deflect attention and gain sympathy after getting in trouble for a “pregnancy scare,” that she expected her allegations to be kept within the family, and that she felt she could not recant her allegations once the police became involved. The admission of testimony from Jennifer and Heather allowed trial counsel to develop this theme by eliciting evidence that both of these women—the two women to whom L.F. made the initial allegations—had been sexually abused themselves, and their sexual abuse had been a “family secret” that did not result in police involvement. With respect to Deputy Folsom’s testimony, trial counsel cross-examined L.F. extensively about her detailed account of the abuse to Deputy Folsom, attempting to differentiate that account from statements she made in court or to other people. In this manner, defense counsel attempted to develop a theme that L.F.’s allegations changed or grew over time, a theme consistent with the theory that L.F. fabricated her allegations. Under the circumstances of this case, we cannot conclude that trial counsel’s decision not to object to the admission of testimony from Heather, Jennifer, and Deputy Folsom could not be considered sound trial strategy. See Thompson, 9 S.W.3d at 814; Martinez, 313 S.W.3d at 364. We overrule Wortham’s second issue. Conclusion We affirm the trial court’s judgment. Harvey Brown Justice Panel consists of Justices Jennings, Sharp, and Brown. Do not publish. Tex. R. App. P. 47.2(b). [1] Tex. Penal Code Ann. § 22.021 (West 2011).