Arrington, Charles

No. PD-0756-15 IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS __________________________________________________________________ CHARLES LAVOY ARRINGTON Appellant VS. THE STATE OF TEXAS Appellee FOURTH COURT OF APPEALS CAUSE NO. 04-12-00430-CR __________________________________________________________________

ON APPEAL FROM THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS __________________________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW __________________________________________________________________ JORGE G. ARISTOTELIDIS

Tower Life Building 310 South St. Mary’s St., Suite 1830 San Antonio, Texas 78205 (210) 277-1906 July 24, 2015 jgaristo67@gmail.com SBN: 00783557

ORAL ARGUMENT REQUESTED

IDENTITY OF JUDGE, PARTIES AND COUNSEL

A complete list of the names and addresses of all interested parties is provided below so the members of this Honorable Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision in this case.

Complainant:

The State of Texas

Petitioner:

Charles Lavoy Arrington

Counsel for the Petitioner:

Mr. Jorge G. Aristotelidis Tower Life Building 310 South St. Mary’s St., Suite 1830 San Antonio, Texas 78205

Counsel For the State:

Ms. Lauren Scott Assistant District Attorney Bexar County Justice Center 101 W. Nueva St. San Antonio, Texas 78205

Trial Judge:

Honorable Sharon MacRae Visiting Judge 187th District Court Bexar County, Texas

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TABLE OF CONTENTS PAGE(S) IDENTITY OF THE JUDGE, PARTIES AND COUNSEL ii INDEX OF AUTHORITIES iv STATEMENT REGARDING ORAL ARGUMENT v STATEMENT OF THE CASE vi STATEMENT OF PROCEDURAL HISTORY vii GROUND FOR REVIEW viii ARGUMENT 1 PRAYER FOR RELIEF 13 CERTIFICATE OF SERVICE 14 CERTIFICATE OF COMPLIANCE 15

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INDEX OF AUTHORITIES

TEXAS COURT OF CRIMINAL APPEALS CASES: Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015)…………..............vii,1 Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997)………………………..9,11 Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993)……………………7,10,11 TEXAS COURT OF APPEALS CASES: Arrington v. State, 413 S.W.3d 106 (Tex. App. – San Antonio 2013)…vii,1,7,12,13

Arrington v. State, 2015 Tex. App. LEXIS 2529 (Ct. App. - San Antonio)(Mar. 18, 2015)(unpublished)……………….vii,8,9

Fuller v. State, 224 S.W.3d 823 (Tex. App.—Texarkana 2007, no pet.)…………10

Lane v. State, 257 S.W.3d 22, 27 (Tex. App.--Houston [14th Dist.] 2008, pet. ref’d)………………………...10

Long v. State, No. 2008 Tex. App. LEXIS 8885 (Tex. App.--Tyler Nov. 26, 2008, no pet.) (unpublished)………………….10

Moran v. State, 350 S.W.3d 240, 242-243 (Ct. App. San Antonio 2011)………….9 Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001……………………...9 TEXAS RULES OF EVIDENCE:

Tex. R. Evid. 702…………………………………………………………………7,9 Tex. R. Evid. 608…………………………………………………………………...8

MISCELLANEOUS: 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999))………………..9

APPENDIX Arrington v. State, 2015 Tex. App. LEXIS 2529 (Tex. App. San Antonio Mar. 18, 2015)

iv

STATEMENT REGARDING ORAL ARGUMENT

Appellant’s case presents an outrageous case of ineffective assistance of counsel, whereby defense counsel wholly failed to object to trial testimony from two State’s witnesses, one of whom gave her expert opinion about the truthfulness of the complainant’s criminal accusations, and the other of whom gave lay testimony that improperly bolstered the complainant’s credibility, such that defense counsel’s omissions could not be justified as reasonable trial strategy, after a review of the cold, appellate record. Because the prohibition against opinion and bolstering testimony is well-settled by this Court’s jurisprudence, oral argument would assist this Court in determining whether it should review Petitioner’s ineffective assistance claim while on direct appeal, or require the Petitioner to expend more resources and further delay the process, by seeking relief via the post-conviction, habeas process.

v

STATEMENT OF THE CASE

On July 9th, 2012, jury selection began in the trial of Mr. Charles Lavoy Arrington (Petitioner), who was charged with six counts of aggravated sexual assault, and one count of indecency with a child by sexual contact, in the 187th District Court of Bexar County, Texas, in San Antonio, Texas, before the Honorable Sharon MacRae, visiting judge presiding. On July 13, 2012, Mr. Arrington was convicted by the jury of five counts of aggravated sexual assault of a child, and one count of indecency with a child by sexual contact. That same day, he was sentenced by the trial court to 60 years on five of the six aggravated sexual assault counts, and to 20 years for the indecency with a child by sexual contact count, with all sentences running concurrent. Because the jury was unable to reach a verdict on Count III, the court declared a mistrial.

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STATEMENT OF PROCEDURAL HISTORY

On August 14, 2013, the Fourth Court of Appeals of San Antonio reversed Mr. Arrington’s conviction, and remanded for a new trial, via published opinion. See Arrington v. State, 413 S.W.3d 106 (Tex. App. – San Antonio 2013).

On January 14, 2015, this Court reversed the Fourth Court of Appeals decision, and remanded all remaining, unresolved appellate issues for its consideration. See Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015).

On March 18, 2015, the Fourth Court of Appeals decided all remaining and unresolved appellate issues, and affirmed Petitioner’s convictions. See Arrington v. State, 2015 Tex. App. LEXIS 2529 (Tex. App. San Antonio Mar. 18, 2015) (unpublished).

On May 21, 2015, the Fourth Court of Appeals denied Petitioner’s motions for panel, and en banc rehearing.

Petitioner’s PDR is due to be filed Wednesday, July 22nd, 2015.

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GROUND FOR REVIEW

Whether the Petitioner’s allegation that his trial counsel rendered ineffective assistance of counsel by completely failing to object to all of the expert and lay testimony about the truth of H.A.’s allegations against Petitioner that was presented by the State in its case in chief, was so outrageous as to eliminate any reasonable trial strategy, and thus allow its consideration on direct appeal, without the need to require Petitioner to expend additional resources and further delay, via the post-conviction, habeas process?

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ARGUMENT

1. Posture of the Case:

At trial, the complainant (H.A.) made a number of sexual assault allegations against the Petitioner. There was no medical, or other evidence presented in support of these accusations, thus rendering the trial a “he said, she said” swearing match between them. See Arrington v. State, 413 S.W.3d 106, 113 (Tex. App. San Antonio 2013)(overruled on other grounds by Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015)). With this backdrop, in its case in chief, the state presented testimony from outcry witness Lisa Dawn McGinnis (McGinnis), and from H.A.’s mother, Virginia Lee Johnson (Jenny). The following are excerpts of their testimony, which is the subject of the Petitioner’s PDR:

2. Expert Opinion about H.A.’s Credibility from the State’s Outcry Witness:

On direct examination, the state called McGinnis, the school counselor at H.A.’s school, who was called as the outcry witness. McGinnis testified that she had two conversations with H.A. at her school. Having learned of a rumor that H.A. had stated that she was pregnant, she questioned H.A. about it. 3 RR 71. When confronted with the rumor, H.A. “said, no, it was a misunderstanding that she was just talking about, basically, where babies come from and her friends had misunderstood her and at that point [McGinnis] believed her. It was a very short interview,” adding that H.A. “handled herself very well.” 3 RR 72. When asked *2 what McGinnis’s “feeling” at the time of the conversation with H.A., she related that she believed that “it was just a rumor…[t]hat some kids were talking about how babies -- where babies come from.” 3 RR 73. McGinnis added that while the conversation warranted a phone call about it to H.A.’s mother, McGinnis “didn’t really feel like there was anything else to the information so [she] didn’t…make any other phone calls at that point,” further elaborating that it was a “judgment call somewhat on” her part “based on [her] experience and what [McGinnis has] seen with other students.” 3 RR 73-74

Two days later, McGinnis had a second conversation with H.A., and revisited the issues based on continuing rumors that she was pregnant, and this time, that H.A. was pregnant with her father’s baby. 3 RR 74-75. It was during this second interview that H.A. first alleged that the Petitioner had sexually assaulted her. 3 RR 76-78.

McGinnis testimony was buttressed by her academic and professional background. She testified that at the time of H.A.’s outcry, she worked at Timberwood Park Elementary, and that she’d previously worked as a school counselor for 11 years and in school administration for twenty-one years. She added that she had a bachelor’s in early childhood education, a Master’s in counseling, and a Ph.D. in counseling and supervision, and that she was a licensed professional counselor, outside of her school counseling certification. 3 RR 70.

During McGinnis’s testimony, without any objections by the defense, the prosecutor asked McGinnis questions relating to whether H.A.’s sexual assault allegation was credible, specifically, McGinnis’s opinion about whether H.A. was telling the truth:

Prosecutor: Now, did you ask any questions -- did you do anything to check the veracity of her story?

McGinnis: I asked enough questions to make a decision about whether I needed to report or not. Based on what she said, based on her demeanor, based on the fact that I did not have any other concerns with her behavior or academically, what I knew about her at that point, I made enough -- got enough information to make a decision about making a report. I was leaving that school at the end of the year. This was the day before schooling got out so I didn't –

Prosecutor: Hold on there one second. I guess what I want to ask you is: You collected enough information to make a report.

McGinnis: Uh-huh.

Prosecutor: All right?

McGinnis: Yes.

Prosecutor: And clearly you made a report because you’re here today.

McGinnis: Yes.

Prosecutor: What did -- what details did you see that lent credibility to her story that made you know that she was telling you the truth?

McGinnis: I felt that she was telling me the truth based on the fact that she had details, for example, what movie they were watching;

that her brother was playing PlayStation when it happened when she was nine; that she could very much put herself in the situation of what was going on exactly at that time.

Those were the things that made me feel like she was telling the truth.

Prosecutor: Okay. Now, what told you that those were the important factors?

McGinnis: Based on my experience that I’ve had with other students, based on my educational experience. Those were the things that I fell back on.

Prosecutor: So you were trained to look for these signs?

McGinnis: As a counselor, yes.

Prosecutor: All right. Have you had the occasion to deal with somebody who made a false report?

McGinnis: Yes.

Prosecutor: Okay. Now, can you distinguish those instances, in general, to this one? I mean, what did she do that might have happened had she been given [sic] a false report?

McGinnis: Most of the time, not all the time, but most of the time when students give a false report they generally will seek you out. Haley did not seek me out. She did the seek out an adult. She was actually telling another student, which my experience has been that's a cry for help when you don’t know what else to do. Most of the time the students who have made false reports they’ve actually sought me out or told another adult. The first time I talked to her she didn’t want to tell me. She was fearful and that also made me feel like that this was a truthful report.

***

Prosecutor: And does that mean that the person has a false memory? That this is, you know, something that they just concocted?

McGinnis: No. It just means that, you know, like I said, with any of us, as time goes by, you might remember things that you didn't remember prior.

3RR 80-83 (emphasis by Appellant).

3. Lay Testimony About H.A.’s Truthfulness:

The State later called Virginia Lee Johnson (Jenny), H.A.’s mother. On direct, the prosecutor asked Jenny whether she’d spoken to her daughter about the sexual assault allegations. The following colloquy ensued:

Prosecutor: And has she, I guess, changed from her initial reaction of talking about what happened?

Jenny: You mean -- not really, no. You mean, like personality?

Prosecutor: Yes. I mean, is she still fearful and embarrassed when she talks about it?

Jenny: No but we don’t really talk about it all that much but I ask her questions and she’s very honest with her answer and she’s not - she doesn’t hide the answers. She tells me the truth.

Prosecutor: Okay. So do you generally initiate the conversations with her or does she talk to you about what happened to her at her dad’s house?

Jenny: She talks to me when we do talk about it.

Prosecutor: Now, have you ever talked with Haley about how serious what happened to her is?

Jenny: Yes.

Prosecutor: And did you -- I mean, were you surprised when this first came out?

Jenny: Yes.

Prosecutor: Why were you so surprised?

Jenny: Because I didn’t think this could happen.

Prosecutor: You didn't think this could happen to your daughter?

Jenny: Yes.

Prosecutor: Did you talk to Haley about the fact that police were going to be involved and she was going to have to –

Jenny: Yes.

Prosecutor: -- follow through with that?

Jenny: Yes.

Prosecutor: Did you talk to her about how serious this was?

Jenny: Yes.

Prosecutor: Did you ask Haley if she was telling the truth?

Jenny: Yes.

Prosecutor: And what did she say to you?

Jenny: She said yes and she started crying. 3 RR 48-50 (emphasis by Appellant).

4. Impeachment of H.A.’s Testimony:

H.A.’s testimony was impeached by the prosecutor. On direct examination, the prosecutor asked H.A., why she had “lied” to H.A.’s mother by failing to tell her about the Appellant’s sexual assault, to which H.A. claimed that “her friends” made her “do it.” See 3 RR 206-207.

5. State’s Closing Arguments:

During her closing arguments, the prosecutor argued that the Petitioner’s guilt was substantiated by McGinnis’ testimony, as follows:

Ms. McGinnis has dealt with kids for 21 years. She told you that generally they do make delayed outcries. She told you that when a kid isn’t seeking out the adult to share this information that has a lot to do with whether or not you’d want to believe them or how you put things in perspective. Haley didn’t seek anybody out.

5 RR 35-36 (emphasis by Appellant).

6. Fourth Court of Appeals’ Decision:

On original submission, the Fourth Court noted that “the State asked the school counselor, McGinnis, her opinion on the truthfulness of H.A.’s accusations,” and that “the State concedes that McGinnis answered direct questions on H.A.’s credibility and truthfulness.” See Arrington, 413 S.W.3d at 113. The Court agreed that her opinion on H.A.’s truthfulness was not admissible. Id. (citing Tex. R. Evid. 702; Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993)), and noted that defense counsel did not object to their admission at trial. Id. at 114.

The Court also noted that “[t]he State also asked H.A.’s mother questions about H.A.’s truthfulness,” and noted that “[t]he credibility of a witness may be supported by evidence in the form of opinion, but the evidence may only refer to character for truthfulness and evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.” Id. at 114 (citing Tex. R. Evid. 608.)

However, after remand from this Court, the Fourth Court of Appeals concluded that “[t]he above questioning occurred in the context of the State asking McGinnis what made her believe H.A. enough to make an official report,” and “in the context of her following up on the second rumor.” Arrington v. State, 2015 Tex. App. LEXIS 2529 *11-12 (Tex. App. San Antonio Mar. 18, 2015) (unpublished). Acknowledging that “[d]uring cross-examination, defense counsel asked McGinnis only a few questions,” it elaborated that “[its] review of the record indicates defense counsel’s strategy in not objecting and conducting a limited cross-examination may have been for the purpose of avoiding emphasizing the matter before the jury…” Id. at *12.

As to Jenny’s bolstering testimony, the Court reasoned that “[t]he mother’s comments were brief and somewhat vague as to the content of what H.A. said that was ‘truthful,’” restating that its “review of the record indicates defense counsel’s *9 strategy in not objecting may have been for the purpose of avoiding emphasizing the matter before the jury.” Id. at * 14.

The Court concluded that the Petitioner therefore “failed to satisfy his burden of proving that there was no imaginable strategy for defense counsel’s failure to object.” Id.

In determining whether trial counsel rendered ineffective assistance of counsel, when the record contains no evidence of counsel‘s reasons for the challenged conduct, the Court “‘will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.” See Moran v. State, 350 S.W.3d 240, 242-243 (Ct. App. San Antonio 2011) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (quoting 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999)). See also Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App. 1992)(“when a cold record clearly confirms no reasonable trial counsel could have made [the complained of] trial decisions, to hold counsel ineffective is not speculation.”).

To be admissible, expert testimony must “assist” the trier of fact. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (citing Tex. R. Crim. Evid. 702) (other citations omitted). Expert testimony assists the trier of fact when the jury is *10 not qualified to “the best possible degree” to determine intelligently the particular issue without the help of the testimony. Id. (citations omitted). But, the expert testimony must aid -- not supplant -- the jury‘s decision. Id. Expert testimony does not assist the jury if it constitutes “a direct opinion on the truthfulness” of a child complainant‘s allegations. Id. (citing Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993)). See also Long v. State, No. 12-07-00256-CR, 2008 Tex. App. LEXIS 8885, 2008 WL 5050099, at *4 (Tex. App.--Tyler Nov. 26, 2008, no pet.) (noting that an expert may not testify that a witness is truthful.) (citing Yount, at 712) and Lane v. State, 257 S.W.3d 22, 27 (Tex. App.--Houston [14th Dist.] 2008, pet. ref’d)). On original submission, the Fourth Court noted that, indeed, “the State concede[d] that McGinnis answered direct questions on H.A.’s credibility and truthfulness.” See Arrington, 413 S.W.3d at 113.

Likewise, efforts by Jenny to bolster the credibility of those allegations (Fuller v. State, 224 S.W.3d 823 (Tex. App.—Texarkana 2007, no pet.) (allowing the State to pre-emptively “rebut,” through lay opinion testimony, attacks on its complaining witnesses solely on the basis of the cross-examination of that witness was inconsistent with the Schutz finding that the defense does not “open the door” for the same testimony by an expert by cross-examining H.A. herself.) (citing Schutz, at 72)), are also prohibited by this Court’s precedent.

The Fourth Court’s focus on the “context” of the prohibited questions, whether McGinnis was sufficiently convinced that H.A. told the truth, to justify making an official report, is irrelevant. The focus is not on the context of the opinion about H.A.’s credibility, but on the fact that the opinion was given, not once, but repeatedly. As the outcry witness, McGinnis function was solely to report about the sexual assault allegations, not to render a carefully crafted opinion as to why she believed that H.A.’s allegations - the very heart of the prosecution’s case – were true. As to the Court’s second observation, that defense counsel’s failure to object and his conducting a limited cross-examination may somehow have been strategy aimed at avoiding emphasizing the matter before the jury, this completely misses the point. Failing to object to clear and deliberate calls for opinion testimony about the credibility of the complainant’s sexual assault allegations is not trial strategy, it is an abject failure to protect the jury’s province as the sole judge of credibility.

It’s also difficult to accept the Fourth Court’s conclusion that, as to Jenny’s testimony, her “comments were brief and somewhat vague as to the content of what H.A. said that was ‘truthful.’” A review of the Jenny’s testimony leaves no doubt that the subject matter about which Jenny believed H.A. to be truthful, to the point of tears, were the sexual abuse allegations against the Petitioner.

At the time of trial, Yount and Schutz had been well-settled precedent for over 18 and 14 years, respectively. Rather, the relevant inquiry is: how can defense counsel sit by idly while the state carefully prepares and engages in a long, roundly prohibited line of questioning, that repeatedly, and over the course of two witnesses, produces devastating opinion testimony, constitute a reasonable trial strategy? It doesn’t. Respectfully, the Fourth Court of Appeals has erred in failing to identify defense counsel’s omissions as outrageous, ineffective assistance of counsel.

Counsel’s ineffective assistance prejudiced the Petitioner, for the following reasons:

1. H.A.’s credibility had already been compromised when none other than the prosecutor confronted H.A. about why she lied when she first spoke to McGinnis, which the Fourth Court noted in its first opinion. See Arrington, 413 S.W.3d at 115, 117.

2. The trial was a classic he-said, she-said swearing match, without medical or other evidence favoring the prosecutions case. Therefore, McGinnis expert, and H.A.’s lay witness validation of H.A.’s accusations, unfairly and decidedly tipped the scales in favor of a conviction;

3. The prohibited testimony was a far cry from an unexpected blurb which could ostensibly be neutralized by defense counsel’s decision to not revisit and re-emphasize the testimony before the jury. Rather, it was a carefully crafted and effective question and answer colloquy between the prosecutor and the two witnesses. Indeed, the prosecutor took all of the liberties that defense counsel permitted her;

4. The prosecutor specifically emphasized and argued McGinnis’ opinion about H.A. truthfulness in closing argument, and supported that opinion

by also discussing McGinnis’ expertise, which in the eyes of the jury, fully qualified her to evaluate the truth of H.A.’s accusations;

5. The fairness of Petitioner’s trial was seriously hampered by the failure on the part of the trial court (and, for that matter, defense counsel) to ensure that a proper unanimity instruction was given in the case, which was conceded error by the state during the Fourth Court’s original consideration. See Id. at 113. While this Court ultimately determined that the lack of a unanimity instruction would not, on its own, have been sufficient to constitute Almanza error, thus reversing the Fourth Court’s determination, it should, when combined with counsel’s outrageous ineffective assistance, and the above enumerated factors, militate in favor of a finding that that the Petitioner’s trial was fundamentally unfair, and its result unreliable. Lastly, the opportunistic role by the state in this case cannot be ignored.

During oral argument before this Court, on original submission, the undersigned asked the Court to consider the State’s unclean hands in the trial process. Unlike unobjected to hearsay, which retains is probative properties, truth opinions about a complainant’s allegations are NEVER admissible. Sure, defense counsel’s dereliction is well established, but it did not give the prosecutor a license to elicit a wholly inadmissible line of questioning, in its quest, not, to do justice, but to secure a conviction, a point eloquently noted by Justice Chapa in a separate, concurring opinion. See Arrington, 413 S.W.3d at 119 (J. Chapa concurring) (“…the trial court failed in its obligation to submit a charge that does not allow for the possibility of a non-unanimous verdict…[a]nd the State failed in its primary duty, which is not to convict, but to do justice, by failing to assure that the convictions were constitutionally obtained.”). The state’s win-at-all-cost efforts in *14 opportunistically producing, introducing, and arguing inadmissible evidence to bag a conviction in this case was clear prosecutorial misconduct. If this Court is serious about maintaining the integrity of the trial process, it should grant PDR, reverse the Petitioner’s conviction, and admonish the State about its ethical duties at trial. Empty warnings in opinions that affirm convictions that are the product of prosecutorial misdeeds, do little to bring about true reform.

PRAYER FOR RELIEF

WHEREFORE, the Petitioner respectfully requests that this Court grant his PDR, order the necessary briefing, reverse the judgment of the Fourth Court of Appeals, and remand this case for a new trial.

Respectfully submitted,

Jorge G. Aristotelidis Tower Life Building 310 South St. Mary’s St., Suite 1830 San Antonio, Texas 78205 (210) 277-1906 jgaristo67@gmail.com

By: /s/ Jorge G. Aristotelidis State Bar No. 00783557

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing “Appellant’s Petition for Discretionary Review,” was served upon opposing counsel, the Appellate Division of the Bexar County District Attorneys Office, and to Mr. Matthew Paul, State’s Attorney, by e-mailing a copy to the Bexar County District Attorneys Office at the Paul Elizondo Tower, 101 W. Nueva, Rm. 370 San Antonio, Texas 78205, and P.O. Box 12405, Austin, Texas, 78711, respectively, on this the 22nd day of July, 2015.

/s/ Jorge G. Aristotelidis

CERTIFICATE OF COMPLIANCE

In accordance with Tex. R. App. P. 9.4(i)(1) and 9.4(i)(2(D), I hereby certify that this brief contains 3,153 words, which have been counted by use of the “Word” program with which this brief was written.

/s/ Jorge G. Aristotelidis

| | Neutral As of: July 22, 2015 9:57 PM EDT

Arrington v. State Court of Appeals of Texas, Fourth District, San Antonio March 18, 2015, Delivered; March 18, 2015, Filed No. 04-12-00430-CR

Reporter 2015 Tex. App. LEXIS 2529 Charles ARRINGTON, Appellant v. The HOLDINGS: [1]-Court’s failure to submit STATE of Texas, Appellee a unanimity instruction did not amount to fundamental error mandating automatic Notice: PLEASE CONSULT THE TEXAS reversal because defendant did not have a RULES OF APPELLATE PROCEDURE right to a unanimous jury verdict under the FOR CITATION OF UNPUBLISHED Sixth and Fourteenth Amendments; OPINIONS. [2]-Counsel was not ineffective for not objecting to testimony by the school Prior History: [*1] From the 187th counselor under Tex. R. Evid. 702 about Judicial District Court, Bexar County, the truthfulness of the alleged victim’s Texas. Trial Court No. 2011CR1663. sexual misconduct accusations because the Honorable Sharon MacRae, Judge counsel’s strategy in not objecting may Presiding. have been for the purpose of avoiding Arrington v. State, 2015 Tex. Crim. App. emphasizing the matter before the jury; LEXIS 15 (Tex. Crim. App., Jan. 14, 2015) [3]-Counsel was not ineffective for not Disposition: AFFIRMED. objecting to testimony by the alleged victim’s mother under Tex. R. Evid. 608 Core Terms about the truthfulness of the alleged victim’s sexual misconduct accusations credibility, ineffective, unanimous, sexual, because the mother’s comments were brief sexual organ, asserts, jury charge, and somewhat vague and counsel’s strategy penetration, counselor, questions, talk, pet, may have been to avoid emphasizing the counsel’s failure, outrageous, issues matter before the jury.

Case Summary Outcome

Overview Judgment affirmed. JORGE ARISTOTELIDIS

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LexisNexis® Headnotes sufficient to undermine confidence in an outcome. This two-pronged test is a Constitutional Law > ... > Fundamental benchmark for judging whether counsel’s Rights > Criminal Process > Right to Jury conduct so undermines the proper Trial functioning of the adversarial process that Criminal Law & Procedure > Trials > a trial cannot be relied on as producing a Verdicts > Unanimity reliable result. HN1 The U.S. Supreme Court holds that Criminal Law & Procedure > ... > Counsel > although the Sixth Amendment right to Effective Assistance of Counsel > Trials trial by jury requires a unanimous jury Criminal Law & Procedure > ... > Counsel > verdict in federal criminal trials, it does not Effective Assistance of Counsel > Tests for require a unanimous jury verdict in state Ineffective Assistance of Counsel criminal trials. A state criminal defendant, Criminal Law & Procedure > Appeals > at least in noncapital cases, has no federal Procedural Matters > Records on Appeal right to the unanimous jury verdict. Although the Sixth Amendment is Criminal Law & Procedure > Appeals > applicable to the States by virtue of the Standards of Review > General Overview Fourteenth Amendment, the United States HN3 Generally, a trial record will not Constitution clearly does not grant a right suffice to establish an ineffective assistance to the unanimous verdict. of counsel claim. When ineffective Criminal Law & Procedure > ... > Counsel > assistance is raised on direct appeal, Effective Assistance of Counsel > Tests for appellate counsel and a court must proceed Ineffective Assistance of Counsel on the trial record not developed for an object of litigating or preserving the claim Criminal Law & Procedure > ... > Counsel > and thus is often incomplete or inadequate Effective Assistance of Counsel > Trials for this purpose. Nonetheless, some claims Criminal Law & Procedure > Appeals > may be disposed of on direct appeal where Standards of Review > General Overview trial counsel’s ineffectiveness is so apparent

HN2 An appellate court reviews an from the record. When no reasonable trial appellant’s claim of ineffective assistance strategy can justify the trial counsel’s of counsel under a well-established conduct, counsel’s performance falls below standard of review. A defendant must show an objective standard of reasonableness as (1) that counsel’s performance is deficient, a matter of law, regardless of whether the i.e., counsel’s assistance falls below an record adequately reflects the trial counsel’s objective standard of reasonableness; and subjective reasons for acting as he or she (2) prejudice, i.e., a reasonable probability does. When the record contains no evidence that, but for counsel’s unprofessional errors, of counsel’s reasons for the challenged a result of the proceeding will be different. conduct, an appellate court will assume a The reasonable probability is a probability strategic motivation if any can possibly be JORGE ARISTOTELIDIS

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imagined, and will not conclude the Opinion challenged conduct constitutes deficient performance unless the conduct is so MEMORANDUM OPINION outrageous that no competent attorney will AFFIRMED engaged in it. This appeal is on remand from the Texas Evidence > ... > Testimony > Expert Court of Criminal Appeals. Charles Witnesses > General Overview Arrington is appealing his conviction on Evidence > Admissibility > Expert five counts of aggravated sexual assault of Witnesses a child and one count of indecency with a HN4 Expert testimony that a particular child by sexual contact. In an opinion witness is truthful is inadmissible under dated August 14, 2013, this court reversed Tex. R. Evid. 702. appellant’s conviction after concluding appellant was denied a fair trial based on Evidence > ... > Impeachment > Bad the trial court’s failure to include a Character for Truthfulness > Opinion & unanimity instruction in the jury charge Reputation and, thus, was egregiously harmed.1 See Arrington v. State, 413 S.W.3d 106 (Tex. HN5 The credibility of a witness may be App.—San Antonio 2013), re v ’d & supported by evidence in the form of remanded, S.W.3d , No. PD-1448-13, opinion, but the evidence may only refer to 2015 Tex. Crim. App. LEXIS 15, 2015 WL character for truthfulness and evidence of 170110 (Tex. Crim. App. Jan. 14, 2013). truthful character is admissible only after On the State’s appeal to the Court of the character of the witness for truthfulness Criminal Appeals, the Court concluded is attacked. Tex. R. Evid. 608. appellant was not egregiously harmed, and Counsel: For APPELLANT: Jorge G. remanded the cause to this court for Aristotelidis, Aristotelidis & Moore, San consideration of appellant’s remaining [*2] Antonio, TX. issues on appeal. On original appeal to this court, appellant For APPELLEE: Jay Brandon, Assistant raised five issues: (1) the trial court District Attorney, San Antonio, TX. committed jury charge error by failing to Judges: Opinion by: Sandee Bryan Marion, give a unanimity instruction as to each Chief Justice. Sitting: Sandee Bryan separate criminal incident alleged at trial, Marion, Chief Justice, Marialyn Barnard, as charged in each separate count/offense Justice, Luz Elena D. Chapa, Justice. in the indictment; (2) the trial court’s jury charge error egregiously harmed him; (3) Opinion by: Sandee Bryan Marion alternatively, the trial court’s jury charge 1 On appeal, the State conceded the lack of such an instruction in the jury charge was error.

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error rendered his trial fundamentally of the female sexual organ of H.A. by unfair, in violation of the Due Process appellant’s finger; and (7) causing the Clause of the Fourteenth Amendment of penetration of the anus of H.A. by appellant’s finger. Count six asserted a the United States Constitution; (4) his trial counsel rendered ineffective assistance of charge of indecency with a child by counsel by failing to object to the State’s intentionally and knowingly engaging in elicitation of expert witness testimony sexual conduct or contact on or about the about the truthfulness of the complainant’s same date by causing H.A., who was under sexual misconduct accusations; and (5) his seventeen years of age, to touch part of the genitals of appellant with the intent to trial counsel rendered ineffective assistance of counsel by failing to object to the arouse or gratify the sexual desire of any State’s elicitation of lay witness testimonyperson. The State presented evidence of about the truthfulness of the complainant’s more than one instance of sexual contact to allegations. Because the State conceded support each count; however, the jury error (the first issue), and we reversed instructions [*4] did not specifically inform the jurors that they had to be unanimous based on our conclusion that appellant was about which separate instance of abuse egregiously harmed (the second issue), our they believed constituted the commission opinion did not address appellant’s final of the offense for purposes of each three arguments. After considering [*3] individual count.2 Instead, the trial court’s these remaining issues, we affirm. instructions permitted the jurors to consider DUE PROCESS whether appellant was guilty of each of the seven alleged offenses, and the jurors were Counts one through five and count seven provided with seven different verdict forms. against appellant alleged that, on or about Appellant asserts the trial court’s failure to March 26, 2010, appellant committed the submit a unanimity instruction as to each offense of aggravated sexual assault of a individual count amounted to fundamental child (H.A.) by intentionally and knowingly trial error in violation of the Due Process (1) causing the penetration of the female Clause to the Fourteenth Amendment to sexual organ of H.A. by appellant’s male the U.S. Constitution, which mandates sexual organ; (2) causing the penetration automatic reversal of his convictions. We of the anus of H.A. by appellant’s male disagree. sexual organ; (3) causing the female sexual organ of H.A. to contact the mouth of HN1 ″The [U.S. Supreme] Court has held appellant; (4) causing the penetration of that although the Sixth Amendment right to the mouth of H.A. by appellant’s male trial by jury requires a unanimous jury sexual organ; (5) causing the penetration verdict in federal criminal trials, it does not 2 For example, with respect to count one, which alleged that appellant’s male sexual organ penetrated H.A.’s female sexual organ, H.A.’s testimony presented evidence of two separate criminal acts that would constitute this offense in her description of the events in her shower and those occurring on the mattress in appellant’s girlfriend’s living room.

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require a unanimous jury verdict in state HN2 We review an appellant’s claim of criminal [*5] trials.″ McDonald v. City of ineffective assistance of counsel under the Chicago, III., 561 U.S. 742, 766 n.14, 130 well-established standard of review. See S. Ct. 3020, 177 L. Ed. 2d 894 (2010); see Strickland v. Washington, 466 U.S. 668, also Schad v. Arizona, 501 U.S. 624, 634 n. 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 5, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1984); Thompson v. State, 9 S.W.3d 808, (1991) (″[A] state criminal defendant, at 812 (Tex. Crim. App. 1999). The defendant least in noncapital cases, has no federal must show (1) that counsel’s performance right to a unanimous jury verdict.″); was deficient, i.e., counsel’s assistance fell Romero v. State, 396 S.W.3d 136, 147 (Tex. below an objective standard of App.—Houston [14th Dist.] 2013, pet. reasonableness; [*6] and (2) prejudice, ref’d) (recognizing that, although Sixth i.e., a reasonable probability that, but for Amendment is applicable to the States by counsel’s unprofessional errors, the result virtue of the Fourteenth Amendment, ″[t]he of the proceeding would have been United States Constitution clearly does not different. Thompson, 9 S.W.3d at 812. A grant a right to a unanimous verdict″); reasonable probability is a probability Phillips v. State, 130 S.W.3d 343, 351 n.6 sufficient to undermine confidence in the (Tex. App.—Houston [14th Dist.] 2004), outcome. Id. This two-pronged test is the aff’d, 193 S.W.3d 904 (Tex. Crim. App. benchmark for judging whether counsel’s 2006). Therefore, we do not believe the conduct so undermined the proper trial court’s error violated appellant’s functioning of the adversarial process that federal due process rights or amounted to the trial cannot be relied on as having an automatic reversal. Romero, 396 S.W.3d produced a reliable result. Id. at 147 (concluding appellant’s argument lacked merit and proceeding to examine HN3 Generally, the trial record will not appellant’s claimed right to unanimity of suffice to establish an ineffective assistance jury verdict under only Texas law); see of counsel claim. Id. at 813-14. When, as also Almanza v. State, 686 S.W.2d 157, here, ineffective assistance is raised on 172-74 (disapproving of cases which direct appeal, appellate counsel and the suggest jury charge error requires an court must proceed on a trial record not ″automatic″ reversal). developed for the object of litigating or preserving the claim and thus is often INEFFECTIVE ASSISTANCE OF incomplete or inadequate for this purpose. COUNSEL Freeman v. State, 125 S.W.3d 505, 506 In two issues, appellant asserts trial counsel (Tex. Crim. App. 2003); cf. Massaro v. was ineffective for not objecting to United States, 538 U.S. 500, 504-05, 123 testimony about the truthfulness of H.A.’s S. Ct. 1690, 155 L. Ed. 2d 714 (2003). sexual misconduct accusations. Nonetheless, some claims may be disposed of on direct appeal where ″trial counsel’s 1. Standard of Review ineffectiveness is so apparent from the JORGE ARISTOTELIDIS

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record.″ Massaro, 538 U.S. at 508; on the subject of ″manipulation,″ ″fantasy,″ Freeman, 125 S.W.3d at 507; see also or any other accepted, expert-based aspect Andrews v. State, 159 S.W.3d 98, 103 (Tex. of credibility. Appellant also asserts Crim. App. 2005); Thompson, 9 S.W.3d at McGinnis’s testimony was not presented 814 n.6. ″[W]hen no reasonable trial as a response to the defense ″opening the strategy could justify the trial counsel’s door.″ Appellant asserts the State portrayed conduct, counsel’s performance falls below McGinnis as an ″expert″ at trial. HN4 an objective standard of reasonableness as Expert [*8] testimony that a particular a matter of law, regardless of whether the witness is truthful is inadmissible under record adequately [*7] reflects the trial Texas Rule of Evidence 702. Yount v. State, counsel’s subjective reasons for acting as 872 S.W.2d 706, 711 (Tex. Crim. App. [he] did.″ Andrews, 159 S.W.3d at 102. 1993).

When the record contains no evidence of H.A. had testified she told her friends counsel’s reasons for the challenged about the incidents that occurred over conduct, we ″’will assume a strategic spring break. McGinnis approached H.A. motivation if any can possibly be twice about rumors, which were circulating imagined,’ and will not conclude the at her elementary school, that H.A. was challenged conduct constituted deficient pregnant. The first time, H.A. told performance unless the conduct was so McGinnis it was a joke and her friends outrageous that no competent attorney made her do it. The second time, H.A. told would have engaged in it.″ Garcia v. State, McGinnis about the sexual abuse. 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Moran v. State, 350 S.W.3d 240, 243 (Tex. When McGinnis took the stand, the State App.—San Antonio 2011, no pet.). Here, no first questioned her about her qualifications: motion for new trial was filed, and no Q: And so how long have you worked post-trial evidentiary hearing was held. as a school counselor? Therefore, our review is limited to the trial record. A: I’ve been a school counselor for 11 years. 2. School Counselor’s Testimony Q: And how long have you worked in During trial, the State asked Lisa McGinnis, school administration. the school counselor, for her opinion on A: Twenty-one years. the truthfulness of H.A.’s accusations and Q: Now, what age groups have you the State concedes McGinnis answered worked with? direct questions on H.A.’s credibility and truthfulness. Defense counsel did not A: Mostly elementary school but the object. Appellant asserts McGinnis was last two years I worked with middle neither qualified nor presented as an expert schools anywhere from five to 15. JORGE ARISTOTELIDIS

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Q: Now, what kind of education do you A: . . . The first time I talked to her she have? didn’t want to tell me. She was fearful A: I have a [sic] early childhood and that also made me feel like that this education degree, a bachelor’s. I have a was a truthful report. master’s in counseling and then a Ph.D. in counseling and supervision and I’m a [Emphasis added.] licensed professional counselor outside Appellant argues this amounted to an expert of my school counseling certification. opinion that H.A.’s accusation against him was the truth. Appellant asserts trial The State then asked her about H.A.’s counsel’s failure to object cannot be credibility: considered trial strategy, and he [*10] Q: What did — what details did you relies on several cases that appear to stand [*9] see that lent credibility to her for the proposition that there are no story that made you know that she was circumstances in which allowing a witness telling you the truth? to opine on the truthfulness of the A: I felt that she was telling me the complainant in a case where there is no truth based on the fact that she had physical or scientific evidence linking the details, for example, what movie they defendant to the crime and credibility of were watching; that her brother was the complainant is the primary issue, might playing PlayStation when it happened be considered sound trial strategy. See when she was nine; that she could very Fuller v. State, 224 S.W.3d 823, 835 (Tex. much put herself in the situation of App.—Texarkana 2007, no pet.) (″defense what was going on exactly at that time. counsel’s tactic seems to have been to Those were the things that made me allow, without objection, the State’s feel like she was telling the truth. witnesses to testify to the credibility and Q: Okay. Now, what told you that those truthfulness of J.W.’s allegations and then, were the important factors? on cross-examination, to explore the A: Based on my experience that I’ve foundation for that witness’ belief in the had with other students, based on my credibility, believability, or truthfulness of educational experience. Those were the J.W.’s allegations″); Sessums v. State, 129 things that I fell back on. S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d) (″[W]e find ourselves Q: So you were trained to look for these reviewing the activities of trial counsel in signs? failing to object to clearly and A: As a counselor, yes. unquestionably objectionable testimony of ... the most outrageous and destructive type. Q: . . . I mean, what did she do that There is no conceivable strategy or tactic might have happened had she been that would justify allowing this testimony giving a false report? in front of a jury.″); Miller v. State, 757 JORGE ARISTOTELIDIS

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S.W.2d 880, 884 (Tex. App.—Dallas 1988, to make an official report. During pet. ref’d) (″In the present case, we can cross-examination, defense counsel asked glean no sound trial strategy in defense McGinnis only a few questions. counsel’s failure to object to the extensive, Our review of the record indicates defense inadmissible testimony concerning the only counsel’s strategy in not objecting and real issue at trial—complainant’s conducting a limited cross-examination credibility.″); Garcia v. State, 712 S.W.2d may have been for the purpose of avoiding 249, 253 (Tex. App.—El Paso, pet. ref’ d) emphasizing the matter before the jury. [*11] (″counsel should have made and Also, McGinnis’s testimony was in the persisted in valid objections to all of the context of her following up on the second testimony which permitted Detective rumor and her decision to make an official Calanche and Yolanda Aguilar to pass report. We conclude appellant has not upon the credibility of other witnesses″). satisfied his burden of proving there was However, after a review of the record, we no imaginable strategy for defense do not agree with appellant’s contention counsel’s failure to object. Therefore, that defense counsel’s performance was appellant has failed to rebut the strong outrageous and lacked any possible presumption of effective assistance, and strategic motive. McGinnis was an outcry has not shown that counsel’s conduct was witness who spoke to H.A. twice. During so outrageous that no competent attorney the first conversation, H.A. did not admit would engage in it or that the outcome of the abuse to McGinnis; instead, H.A. told the trial is unreliable due to counsel’s McGinnis the pregnancy rumor was merely errors. a misunderstanding with her friends. McGinnis admitted H.A. ″was not 3. The Mother’s Testimony forthcoming in telling me anything that The State also asked H.A.’s mother was going on that was inappropriate.″ questions about H.A.’s truthfulness. HN5 McGinnis did not believe an official report The credibility of a witness may be was necessary, although she informed supported by evidence in the form of H.A.’s mother about the conversation. The opinion, but the evidence may only refer to second conversation with H.A. occurred character for truthfulness and evidence of two days later when another rumor truthful character is admissible only after circulated that not only was H.A. pregnant, the character of the witness [*13] for but H.A. thought the baby might be truthfulness has been attacked. TEX . R. appellant’s. McGinnis called H.A. back to EVID. 608. Appellant argues he did not her office, and this time, H.A. made her ″open the door″ by attacking H.A.’s outcry. McGinnis then made her official credibility, so as to allow H.A.’s mother to report. The above questioning occurred in provide her opinion on H.A.’s truthfulness. the context of the State asking McGinnis Appellant points to the following portions [*12] what made her believe H.A. enough of H.A. ’s mother’s testimony: JORGE ARISTOTELIDIS

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Q: And has she, I guess, changed from not object. her initial reaction of talking about On appeal, appellant asserts that because what happened? defense counsel [*14] did not attack H.A.’s A: You mean — not really, no. You character for truthfulness, it was improper mean, like personality? for the State to elicit this testimony. And, Q: Yes. I mean, is she still fearful and even if H.A.’s character for truthfulness embarrassed when she talks about it? had been attacked, the mother’s testimony was not proper rebuttal testimony. A: No but we don’t really talk about it Therefore, defense counsel’s failure to all that much but I ask her questions object constituted ineffective assistance of and she’s very honest with her answer counsel. We disagree. and she’s not — she doesn’t hide the answers. She tells me the truth. The mother’s comments were brief and somewhat vague as to the content of what ... H.A. said that was ″truthful.″ Our review Q: You didn’t think this could happen of the record indicates defense counsel’s to your daughter? strategy in not objecting may have been for the purpose of avoiding emphasizing A: Yes. the matter before the jury. We conclude Q: Did you talk to [H.A.] about the fact appellant has not satisfied his burden of that police were going to be involved proving there was no imaginable strategy and she was going to have to — for defense counsel’s failure to object. A: Yes. Therefore, appellant has failed to rebut the strong presumption of effective assistance, Q: — follow through with that? and has not shown that counsel’s conduct A: Yes. was so outrageous that no competent Q: Did you talk to her about how attorney would engage in it or that the serious this was? outcome of the trial is unreliable due to counsel’s errors. A: Yes. Q: Did you ask [H.A.] if she was telling CONCLUSION the truth? We overrule appellant’s remaining issues A: Yes. on appeal and affirm the trial court’s judgment. Q: And what did she say to you? Sandee Bryan Marion, Chief Justice A: She said yes and she started crying. Do not publish [Emphasis added.] Appellant’s counsel did

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