Eric Gunnar Berg v. State

• Court: Court of Appeals of Texas
• Decided: February 17, 2005
• Docket: 01-03-01141-CR
• Status: Published

Opinion

Opinion issued February 17, 2005

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-01140-CR

NO. 01-03-01141-CR

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ERIC GUNNAR BERG, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 338th District Court

 Harris County, Texas

Trial Court Cause Nos. 945666 & 945667

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MEMORANDUM OPINION

          Appellant pleaded guilty to a jury to two indictments alleging aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (a)(1)(B)(iv) (Vernon Supp. 2004-2005). The jury assessed his punishment at 35 years for each offense, and the trial court stacked the sentences. We determine (1) whether trial counsel was ineffective in various ways; (2) whether appellant’s Due Process rights were violated by the presence of a domestic-violence display in the courthouse; (3) whether the trial court erred in requiring the parties to present evidence by affidavit at the hearing on appellant’s motion for new trial; (4) whether the misreading of the indictment during arraignment in one cause either constituted a total failure to admonish appellant or misled him in any way; (5) whether the trial court erred in not withdrawing appellant’s guilty plea in both causes; (6) whether sufficient evidence supported the guilty plea in one cause; and (7) whether appellant waived his challenge to the State’s closing argument. We affirm.

Background

          Appellant, a 55-year-old man at the time of trial, sexually assaulted the complainant, a close family friend, starting when the complainant was 10 years old. The complainant made outcry to his mother when he was about 13 years old. Appellant was indicted for two instances of sexual assault on the complainant. The offenses were aggravated sexual assaults because the complainant was under the age of 14. See Tex. Pen. Code Ann. § 22.021(a)(2)(B) (Vernon Supp. 2004-2005).

Ineffective Assistance of Counsel

          In his first issue, appellant asserts that his trial attorney, Don Becker, was ineffective for various acts and omissions.

          The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (applying Strickland standard at punishment phase of non-capital trial). Appellant must show both that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel’s error or omission, the result of the proceedings would have been different, i.e., the error or omission was sufficient to undermine confidence in the proceeding’s outcome. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. The constitutional right to counsel does not mean the right to errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813.

          It is the defendant’s burden to prove ineffective assistance of counsel. Id. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). We will normally not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Gamble, 916 S.W.2d at 93. However, “in the rare case” in which the record suffices “to prove that counsel’s performance was deficient” despite the record’s silence concerning counsel’s strategy, “an appellate court should obviously address the [ineffective-assistance] claim . . . .” Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).

A.      Failure to Investigate

          Appellant first asserts that Becker failed to investigate and, thus, could neither properly advise appellant concerning his pleas nor prepare adequately for trial. Specifically, appellant alleges that Becker (1) advised him to plead guilty before having investigated the case, rendering the plea involuntary; (2) did not interview Dr. Levinson, appellant’s treating psychiatrist; (3) did not obtain Dr. Levinson’s records concerning appellant until the day before trial; (4) did not review videotaped statements with an expert; and (4) did not obtain any medical records concerning appellant until the State subpoenaed them. Elsewhere in his brief, appellant also notes that Becker was not licensed for a short time before trial.

          Appellant presented the following affidavit testimony in support of these ineffectiveness arguments. In the affidavit that Becker made for appellant, Becker testified that he told appellant to plead guilty and to go to the jury on punishment before Becker had reviewed the complainant’s videotaped interviews or had interviewed appellant’s doctors. Becker also averred that he conducted no witness interviews between March and September, although trial began on October 27, 2003. Appellant also submitted the affidavit of Dr. Nicholas Edd, appellant’s treating psychologist who testified at trial for the defense, in which Dr. Edd averred that he first met Becker only 15 minutes before trial, for no more than 10 minutes, during which time they discussed “generally the case and the treatment of [appellant],” but did not discuss appellant’s treatment plan. Dr. Edd also testified by affidavit that Becker did not discuss with him “any general areas of knowledge regarding mental illness,” the doctor’s “impressions of [appellant’s] mental illness,” the recidivism rate for pedophilia, how that recidivism compares to the recidivism rate for other crimes, or “any of the definitions in the DSM-4 or whether [appellant’s] condition fit any particular diagnosis or what [appellant’s] particular diagnosis was.” Becker also averred, in his affidavit made for the defense, that he was not a psychologist or psychiatrist and that he did not know any of the predisposing or precipitating factors for pedophilia.

          In the portion of the evidentiary hearing on appellant’s motion for new trial in which live testimony was presented, Dr. Levinson testified that, had Becker requested a meeting with her before trial, she would have met with him, but that no one from Becker’s office did so or even called to interview her as a potential witness. She also testified that Becker did not ask for her medical records concerning appellant until the day before trial. Dr. Levinson further testified that, although she had received a subpoena to testify on an earlier trial date, which was not reached, she did not receive a subpoena for the actual trial date.

          Appellant produced his own affidavit, as well. In it, appellant testified that Becker seldom returned his frequent calls; Becker told appellant through at least part of September that it was too early to begin investigations or to prepare for appellant’s case and that the best time to prepare was “just before the start of trial”; Becker hired “no other staff or private investigators” until “just prior to trial,” at which point Becker hired only a “runner”; when he advised appellant to plead guilty in September, Becker still had not yet reviewed the complainant’s videotaped interviews or spoken with appellant’s doctors; after their initial meeting, Becker did not meet with appellant again until October 14, 2003, about two weeks before trial; at their final meeting the Friday before trial, Becker told appellant that he “had just received” appellant’s medical records; Becker did not question any of appellant’s doctors regarding appellant’s improvements during therapy, save for Dr. Edd, with whom Becker met 15 minutes before trial; and Dr. Levinson did not show up for trial because the subpoena that had been served on her had expired.

          Appellant also submitted the affidavits of two experienced criminal defense attorneys, who opined either that it would be below the standard of care for counsel to fail to conduct extensive preparation of records or not to spend significant time interviewing experts in a case such as this.

          However, other affidavit testimony controverted or lessened the impact of some of the affidavit testimony submitted by appellant. For example, in his affidavit prepared for the State, Becker testified that, before appellant decided to plead guilty upon Becker’s advice, Becker had reviewed the State’s file; had watched videotapes of the complainant’s interviews; had spoken with all of the witnesses who ultimately testified at trial; had “thoroughly investigated [appellant’s] case”; had called all of appellant’s treating mental-health professionals and, with the exception of Dr. Levinson, had spoken with each; had reviewed the medical records “way in advance of trial”; had gone twice to appellant’s home to meet with witnesses whom appellant had identified; had met appellant’s neighbors and “other witnesses,” from whom Becker “attempted to find out what they knew about [appellant], his character, and his background”; and had met with both prosecutors handling the case before trial to try to negotiate a plea, although those negotiations did not succeed.

          As for Dr. Levinson, Becker’s affidavit stated that he had twice personally attempted to contact her and that someone with his office had also contacted her, but that the doctor had called him back twice when he was not in the office. Becker then subpoenaed Dr. Levinson and “tried to contact her to let her know when to come and to verify that she received the subpoena”; however, after the doctor had left a phone message with Becker that she “would not have or make time to come to trial,” Becker decided not to seek a writ of attachment because he felt that Dr. Edd, appellant’s treating psychologist, would testify to essentially “the same area.”

          In his affidavit for the State, Becker also testified that, although he spoke with Dr. Edd and Dr. Ilene Starbranch, one of appellant’s treating physicians, just before trial, he “was aware of what they would testify to based upon [his] review of their records, which was done way in advance of trial.” Additionally, on direct and re-direct examination of the doctors, Becker did not seem at a loss as to what to ask. For example, he elicited from Dr. Edd the following matters, which appear to have been intended to indicate appellant’s improvement through treatment, to show appellant’s sincerity, and to evoke sympathy for appellant:

●Appellant was making progress in sex-offender counseling.

●The goal of sex-offender therapy is to reduce the chances of future acting out.

●Motivation is probably the most important characteristic in succeeding in that goal.

●Appellant had therapy sessions three times weekly, he had never missed a session, and he exhibited a “high level” of participation in sessions.

●Participation in therapy would give appellant “the tools to be able to modify deviate behaviors and arousals, give[] him the resources to utilize in his recovery.”

●Participation in therapy sessions is a “big factor” and “increases the likelihood that a person will not reoffend.”

●Therapy participants, like appellant, sign a contract requiring certain behavior when beginning therapy.

●Appellant had violated his contract terms twice, by allowing others to bring children around him, but had both times immediately reported the violations to his therapists, despite the fact that his therapists would not otherwise have known about the violations. Dr. Edd was aware of no other violations of appellant’s contract.

●Appellant had discussed with Dr. Edd how he had arranged his life to avoid being around children.

●Appellant had been honest in his self-reporting.

●Therapy required appellant to disclose prior sexual offenses; appellant complied with this requirement.

●Appellant, who was 55 at the time of trial, reported only one sex crime that he had committed from his 20s through 40s.

●Appellant followed Dr. Edd’s advice to stop indulging in alcohol.

●Appellant had followed Dr. Edd’s advice to stop seeing a female patient, apparently because that relationship could be detrimental.

●Appellant had suffered sexual abuse himself, which was a significant fact because “it has something to do with establishing his sexuality and his orientation toward people,” and appellant demonstrated a higher-than-average level of depression and feelings of inadequacy and had attempted suicide.

●Medication can be used to treat appellant’s depression, and appellant was currently on such medication.

●Appellant had a very significant degree of psycho-social maladjustment, which can be treated and is treated in the program that appellant was attending.

●Appellant had a higher-than-average capacity for empathy, which is a “highly desirable” trait and a “positive prognostic” indicator for how someone will fare in treatment.

●Appellant exhibited “a multitude” of “thinking errors,” which increase the likelihood of committing sexual offenses, when he began therapy, but had made progress in identifying the thinking errors and his ability to explain how they affected him and how to reverse them.

●Appellant had shown a “considerable degree of remorse” to Dr. Edd, the doctor believed in part because he had been caught, but also because of the damage that he had caused to the victims and their families.

●Dr. Edd did not know of any instances in which appellant had engaged in physical violence toward his victims.

●Had appellant begun therapy 10 years prior, “the most recent [offenses] would most likely not have occurred.”

●Those who have attended Dr. Edd’s program in the past had had a “very, very low incidence of reoffending during the time that we’ve had contact with them.”

          Becker also presented Dr. Starbranch, who testified that appellant had suicidal ideations; that appellant suffered from a mood disorder similar to manic depression or bipolar disorder; that that condition can increase the likelihood of a person’s engaging in illegal or anti-social behavior if not treated; that that condition can be treated with medication; that appellant was currently taking medication for his condition; that appellant’s continuing to take his medication would decrease the likelihood that he would act impulsively in any situation; and that appellant had shown up for all of his appointments with Dr. Starbranch, although he had been late for some.

          Becker also testified that he had spoken with appellant “on numerous occasions.” Finally, the principal prosecutor at trial, Jamie Mostia, submitted an affidavit averring that Becker had reviewed the State’s files at least once prior to trial; that she had complied with a pre-trial discovery motion filed by Becker; and that she had met or spoken with Becker “on numerous occasions” before trial “in regards to [appellant’s] case,” including plea negotiations.

          Becker further averred that his license was suspended for only four or five days when he fell behind on continuing-legal-education requirements; that he sought reinstatement immediately upon being informed of his suspension the day after he had been suspended; and that, although he did not work on appellant’s case during his few days’ suspension, he was reinstated more than three weeks before trial began.

          Given this record, we hold that counsel was not so deficient in preparing for trial as to render his service constitutionally infirm.

B.      Failure to Inform Appellant of His Fifth Amendment Right Not to Testify

          Appellant also asserts that Becker failed to inform him of his Fifth Amendment right against self-incrimination. See U.S. Const. amend. V. To substantiate this claim, appellant presented two affidavits: his own affidavit, in which he averred that “[a]t no time was I ever given my Miranda rights or advised of my right against self-incrimination,” and Becker’s affidavit for the defense, in which Becker admitted that “Mr. Berg was never admonished as to the dangers of self-incrimination during the sentencing phase by myself or by the Court.”

          However, in his affidavit made for the State, Becker averred that he had “discussed the advantages and risks of [appellant’s] testifying. [Appellant] was aware of those risks and advantages prior to his testifying at trial. It was our decision to testify.” Additionally, Becker’s affidavit avers:

Eric is a likeable and nice man and I hoped that the jury would like him as much as I and everyone else did. He had no impeachable criminal history. Though he admitted to having [had] sexual relations with other boys, that information was already known to the prosecutor and included in psychiatric records . . . . During testimony, [appellant] admitted that he was “very sick.” It was my strategy to paint [appellant] as someone with a problem that could be treated, therefore someone who could benefit from therapy and probation.

In his affidavit made for the defense, Becker corroborated his reasons for having called appellant to the stand, including that appellant testified to prove up eligibility for community supervision, to show that appellant had no previous criminal record, and to express appellant’s remorse to the jury.

          Given this disputed evidence, we hold that appellant did not show that counsel was necessarily deficient for the reason.

C.      Failure to Object to Evidence of Prior Bad Acts and Extraneous Offenses

          Appellant argues that Becker was ineffective for failing to object to testimony of, to file a motion in limine concerning, to move to quash the State’s subpoena for medical records containing information about, and for allowing appellant to testify to prior bad acts and extraneous offenses. Appellant also asserts that Becker was ineffective for failing “to object to [appellant’s] secret thoughts,” we presume meaning appellant’s inappropriate thoughts that were discussed and recorded in therapy.

          Appellant presented the following testimony in support of this ineffectiveness argument. In his affidavit made for the defense, Becker testified that he “encouraged [appellant] to continue his therapy”; that Becker failed to advise appellant “not to make disclosures of improper conduct to anyone, including his therapists”; that Becker “knew that [appellant’s] therapists would create business records accessible to the State”; that he “did not file any motions to quash the State’s subpoenas” for medical records; that he did not raise any objections during trial because he “did not feel that any objections were necessary or well-founded”; that he did not file a motion in limine because he “couldn’t think of anything I wanted to limine out”; and that “[i]t was very damaging” to appellant for the jury to hear that appellant “had previously stated something about his ‘greatest pleasure.’”

          Additionally, appellant produced his own affidavit, in which he testified that, after he had “advised Mr. Becker that [he] had contacted a psychologist and was seeking medical attention for my mental problems,” Becker told appellant that his seeking psychiatric help was “good for” his case. Appellant further testified that he “began to proceed with psychological testing, following Mr. Becker’s advice.” Appellant averred, “At no time was I ever given my Miranda rights or advised of my right against self-incrimination.”

          Appellant also presented the affidavits of two experienced criminal defense attorneys, who testified that the usual practice in aggravated-sexual-assault-of-a-child cases is for defense counsel to hire an independent expert—to assist in preparing for cross-examination and to help prepare, during any punishment phase, a potential course of treatment for the client that may be presented to the factfinder—so that that expert’s evaluations could be considered work product that would not be subject to State subpoena. The defense-counsel affiants also testified either that “it would be difficult to comprehend” any defense counsel’s not attempting to mitigate damaging information revealed in medical records or not trying to fight the information’s admission by motion in limine, motion to quash, or motion to exclude. They testified that such failures would fall below the standard of care.

          However, the following evidence indicates that Becker was not ineffective. First and foremost, although the attorney-client privilege or work-product-doctrine protection may attach to certain communications or writings generated during a mental-health professional’s evaluation and consultation conducted for the attorney in preparation for litigation, that privilege would not attach to a treating health professional’s records and communications if the defendant-patient himself offered evidence of his treatment to support a defensive theory. The record from trial indicates that the defense’s primary strategy was to confess to prior wrongs and offenses, to demonstrate appellant’s honesty, to show the jury that appellant was sincerely penitent about his prior bad acts and recognized the errors in his prior thoughts, and to show that he was actively and successfully changing his ways through therapy. An integral part of this strategy was for appellant to show that he was in therapy and making progress. This could have been a reasonable strategy to take given that the complainant had already made outcry; was 10 years old when appellant began sexually assaulting him, rather than having been too young to communicate the offense; and testified articulately and specifically as to what appellant had done to him. Given Becker’s evident strategy, he may well have determined that it was better to allow the State to access therapy records revealing prior bad acts, and to open his witness to the State’s examination concerning those acts, than to forego the strategy of appellant’s testifying fully to matters showing his remorse, honesty, and improvement through therapy. Additionally, even if a mental-health professional had been independently consulted, appellant has not shown that that professional would not have had to report, to the appropriate agencies, at least the prior sexual assaults of minors that appellant revealed during consultation.

          Second, appellant’s affidavit recites that, when he initially met with Becker, appellant advised Becker that he had already contacted a psychologist and that he was seeking medical attention for his mental problems. Appellant points to nothing in the record showing why he had done so before contacting Becker. Becker’s affidavit for the defense states that he “encouraged [appellant] to continue his therapy,” not that he talked appellant into going initially. And although appellant’s affidavit also avers that, after his initial consultation with Becker, he “began to proceed” with therapy “following Mr. Becker’s advice,” we have no way of knowing whether appellant desired treatment more than he desired keeping previous criminal offenses secret, whether Becker advised him beforehand that his therapy communications could be subpoenaed or not. Additionally, the initial documents that appellant signed for his mental-health providers informed him that any prior crimes against minors that he revealed during therapy were not privileged and could be disclosed. Indeed, Dr. Levinson’s initial disclosures advised appellant, “Statements that you make in treatment must be recorded in the Treatment Provider’s notes. The Treatment Provider can be subpoenaed and required to provide written records or oral testimony in a civil, administrative, or criminal proceeding.” Appellant’s trial testimony also revealed that appellant had not begun therapy two years earlier in part because he knew that any child-abuse admissions that he made to a psychiatrist would have to be reported immediately. Accordingly, discerning what motivated appellant to begin therapy, and why Becker encouraged appellant to continue therapy, would require speculation, which we decline to do. Cf. Gamble, 916 S.W.2d at 93.

          We hold that Becker’s challenged conduct did not render his representation constitutionally infirm. Given the state of the record and for the reasons discussed above, we further hold that this is not one of those “rare case[s]” in which no strategy could explain counsel’s challenged actions. See Robinson, 16 S.W.3d at 813 n.7.

D.      Failure to Make an Opening Statement

          Appellant asserts that Becker was ineffective for failing to make an opening statement. In support, appellant relies on Becker’s affidavit for the defense, in which Becker averred that “[t]here was no sound strategic basis as to why I did not do an opening statement.” However, even assuming without deciding that Becker was deficient in this regard, we hold that appellant—who provides no explanation or argument as to why failure to present an opening statement was so harmful as to require reversal given the facts and posture of this case—has not shown that there is a reasonable probability that, but for this failure, the trial’s result would have been different. See Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69.

E.      Conducting a Poor Voir Dire Examination

          Appellant also asserts that Becker was ineffective during voir dire because he

failed to conduct examinations of fragile venirepersons before the bench. As a result, one venireperson commented that she had remorse because of a repeat offender and one venireperson, Mr. Kahan, was essentially offered as an expert by Becker and proceeded to undermine treatment options. Becker then interposed his own opinion about wife beaters.

          First, Becker began his examination by noting that a venire member had had a “real strong reaction” when the trial court had read the charges and that she had revealed, during the State’s voir dire, that she did not believe that she could give community supervision because she had previously been on a jury that had done so, only to discover later that the defendant had committed another offense. The venire member acknowledged that she had reacted this way and had said these things. This venire member did not serve on the jury.

          Second, in questioning the panel about whether anyone thought that, once a person had offended, he could not be rehabilitated, Becker analogized to a wife beater, asking whether anyone thought that such an offender would never stop offending. Becker then asked whether anyone thought that a sexual offender who pleaded guilty to child abuse could not be rehabilitated. Later, following up on a response to this line of questioning, in which a venire member had commented that one hears about reoffenders “so much” in the media, Becker asked whether the media would report on convicted criminals who do not reoffend; the panel member responded, “Probably not.”

          Third, Becker followed up with a venire member, Mr. Kahan, who had indicated that he thought that those guilty of sexual offenses would reoffend. When Becker asked what Kahan did for a living, Kahan responded that he ran a crime victims’ office for the City of Houston, and Becker also elicited from Kahan that he had worked with sexual offenders before and even that he “was in the paper this morning.” Becker then questioned Kahan as follows: “Based on your experience—and you have lots of experience. . . . [I]s it your opinion that sex offenders can never be successfully treated?” Kahan responded affirmatively. Becker then continued the line of questioning with the panel. Kahan did not serve on the jury.

          The only record evidence of Becker’s strategy came from his new-trial affidavit made for the State, in which he explained why he did not discuss the burden of proof or the punishment range more thoroughly, but that affidavit did not discuss the strategy behind the matters of which appellant complains here. We will not speculate on Becker’s reasons for his voir dire examination under these circumstances. See Gamble, 916 S.W.2d at 93. This is simply not one of those “rare case[s]” in which no strategy could explain counsel’s not moving to strike the entire panel or his not seeking to voir dire certain panel members before the bench. See Robinson, 16 S.W.3d at 813 n.7.

F.      Failure to Object to the State’s Expert

          Appellant argues that Becker was ineffective for failing to object to the testimony of Dr. Lawrence Thompson Jr., the State’s sole testifying expert and a clinical psychologist from the Children’s Assessment Center, because he had not been disclosed “pursuant to court order and Brady.”

          The State did not disclose Dr. Thompson in its pretrial response to appellant’s motion to disclose experts. Becker did not object to the doctor’s testimony on this basis. At the new-trial hearing, appellant presented the affidavit of an experienced criminal-defense attorney, in which the attorney averred that failing to object to an expert of whom sufficient notice was not received would fall below the standard of care.

          Nonetheless, appellant’s brief does not explain why Becker’s failure to object could not be considered part of a valid trial strategy or how the failure to object might have harmed appellant under Strickland. Simply put, nothing shows why Becker did not object, and we decline to speculate about it. See Gamble, 916 S.W.2d at 93.

G.      Failure to Move for Directed Verdict in Trial Court Cause Number 945667

          Appellant asserts that Becker was ineffective because he did not move for directed verdict in trial court cause number 945667, in which appellant was charged with contacting the complainant’s anus with appellant’s sexual organ. Specifically, appellant argues that the only evidence presented was of (1) attempted penetration, not penetration, and (2) that the testimony showed that the attempted penetration occurred on the complainant’s “butt,” not his “anus.” Appellant also supports his challenge with Becker’s affidavit testimony for the defense, in which Becker testified that he had “no sound strategic basis” for not having moved for directed verdict.

          A motion for directed verdict is proper when, viewing all of the evidence in the light most favorable to the State after it rests, no rational trier of fact could find the disputed element of the crime beyond a reasonable doubt. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003) (applying this standard of review to an appellate challenge to the denial of a directed-verdict motion, which the court construed as legal-sufficiency challenge).

          Appellant was charged with causing his sexual organ to contact, not to penetrate, the complainant’s anus. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iv) (establishing that offense committed when person intentionally or knowingly “causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.”) (emphasis added). It is possible to make contact when attempting penetration. Moreover, appellant and the complainant both testified that appellant ceased attempting to penetrate the complainant because doing so was hurting the complainant; this testimony established contact. And, viewing appellant’s testimony in the light most favorable to the verdict, the jury could reasonably have equated “butt” with anus, especially given appellant’s testimony that he attempted penetration (which would usually be considered possible only with the anus, not with the buttock) and that the complainant complained of pain. Counsel is not deficient for not moving for a directed verdict on a charge that had evidence to support it. See Collum v. State, 96 S.W.3d 361, 367 (Tex. App.—Austin 2002, no pet.) (“[C]ounsel does not render ineffective assistance of counsel by failing to preserve an error that is not reversible.”).          

H.      Failure to Offer “Treatment Plan” for Appellant

          Appellant also argues that Becker was ineffective for failing to offer a “treatment plan” for appellant.

          In support of this ineffectiveness argument, appellant presented the affidavit of an experienced criminal-defense attorney, who opined that it is below the standard of care for defense counsel “not to have a treatment program to present to the jury as an alternative to incarceration” in this type of case.

          In his affidavit for the State, however, Becker explained:

I did not prepare a “treatment plan” for the jury to consider, as they would not determine the specific conditions of [appellant’s] probation; that would be for the Judge to decide. In addition, Dr. Edd and [appellant] had both gone over [appellant’s] treatment plan thoroughly during the punishment phase of trial. Therefore, any treatment plan that I would have suggested, would not necessarily have been put into practice.

Given this explanation, we decline to hold that counsel was deficient in this regard. Even if Becker were deficient in this regard, we hold that there is not a reasonable probability that, but for that error, the trial’s results would have been different. This is because, as Becker’s affidavit indicates, Dr. Edd and appellant testified as to how long appellant would need therapy and what requirements and restrictions should be imposed on him if he were to succeed in therapy.

I.       Closing Argument

          Appellant argues that Becker made an “egregious” closing argument, during which Becker allegedly (1) likened appellant to a wife-beater, a drunk, a drug addict, or a compulsive gambler; (2) argued “outside the record that there were five child victims”; and (3) “tantalized the jury” with killing appellant, and, because that was not a punishment option, explained that appellant could instead receive any sentence from life in prison to community supervision.

          First, Becker described appellant in closing as “a person who is sick” and stated:

Why did [appellant] do what he did? I think it’s pretty clear. It’s just like a person who is a drunk. It’s like a person who is a drug addict. It’s [sic] a person that can’t control gambling. They are sick. They are sick people. [Appellant] was a sick, sick person who did sick, sick things.

However, Becker’s affidavit for the State explained:

During testimony, [appellant] admitted that he was “very sick.” It was my strategy to paint [appellant] as someone with a problem that could be treated, therefore someone who could benefit from therapy and probation. Any reference to [appellant] as “sick” or like an addict was made in an effort to evoke sympathy and mercy.

This is a valid strategy. Additionally, Becker’s statements about appellant cannot be considered in a vacuum. Becker argued repeatedly that community supervision was appropriate; that appellant “stepped up to the plate” by admitting that he had done wrong and that he was sick and needed help; that his victims were teenagers, as opposed to infants or very young children; that he had no prior criminal history and had always had a job; that he had friends who stood by him despite knowing what he had done; that he was remorseful; that he was honest (by, among other things, revealing past offenses and admitting that he had violated his therapy agreement by being around children, when his therapists would not have otherwise known these things); that he wanted to change through therapy; that he was attending therapy and making progress; and that appellant would have to comply with specific requirements if he were given community supervision, so that there would be “plenty of safeguards so other children or young men in the community will be safe.”

          Second, Becker mentioned five child victims about whom the jury had heard testimony. Contrary to appellant’s assertion, however, there was evidence of four actual victims, counting the complainant here, and of one attempted victim. Dr. Edd testified that there were “five” victims and then named each of them: the complainant, D.F., Bill (appellant’s nephew), Chuck, and Jim, the last of whom appellant “approached . . . sexually and tried to engage . . . sexually,” but “backed off” when Jim rebuffed appellant. It was to these five individuals—either attempted or actual—whom Becker and the prosecutor referred during closing arguments by the phrase “five victims.” Becker was not deficient for using this phrase to refer to the five boys.

          Third, near the start of his closing argument, Becker argued:

So what do we do with an Eric Berg? Can’t kill him. It’s not an option. We have the option of five years probation to [sic], to make him spend the rest of his life in prison. Those are the options you have.

During voir dire, when Becker was asking the panel if anyone thought that sexual offenders would necessarily reoffend, one panel member exclaimed, “One treatment for sex offenders that is guaranteed to work—(indicating).” Becker responded, “Well, I’m not going to get into that.” The record does not reveal what the venire member gestured. The venire member’s unrevealed gesture might explain why Becker, in closing argument, mentioned that capital punishment was not an option. Regardless, nothing in the record expressly shows why Becker made this statement. For this reason, and also given the ambiguous gesture and comment made by the venire member earlier, we decline to speculate what Becker’s strategy was. See Gamble, 916 S.W.2d at 93.

J.       Post-Trial Deficiencies

          Appellant argues that Becker was ineffective for failing to object that appellant’s punishment was cruel and unusual and for being “absent from Motion for New Trial testimony.” Both complaints are waived because appellant cites no authority and includes no argument or analysis in support of either. See Tex. R. App. P. 38.1(h); Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim. App. 2003) (“Appellant does not . . . present any argument or authority in support of his claim . . . . Appellant has therefore failed to adequately brief this . . . issue.”) (citing Tex. R. App. P. 38.1(h)).

K.      Failure to Hire Mental-Health Professionals So As to Shield Examination

          Appellant asserts that Becker was ineffective because he did not hire mental-health professionals to examine appellant, so that appellant’s medical records would be subject to work-product privilege. We have already addressed and rejected this contention in our discussion concerning Becker’s failure to object to evidence of extraneous offenses and prior bad acts.

L.      Counsel’s Overall Representation

          In addition to his actions set out above, Becker moved pre-trial for inspection and discovery. He reached an agreement with the State for “mutual discovery of experts 20 days before trial.” He presented eight witnesses on appellant’s behalf, one of whom was appellant’s treating psychologist, and another of whom had been a treating physician. The remaining witnesses were neighbors, co-workers, and friends of appellants, many of whom testified that they knew the general charges against appellant but considered him a good person or a friend nonetheless. Becker conducted a lengthy direct examination of appellant, for 31 pages of the reporter’s record, in which appellant testified to matters showing remorse, honesty, contrition, improvement through therapy, and the desire not to reoffend and in which he was clearly trying to evoke sympathy.

M.     Conclusion

          We hold that either Becker’s overall representation was not constitutionally deficient or that, if it was deficient in some respects, those deficiencies did not undermine confidence in the proceeding’s outcome. See Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. We overrule appellant’s first issue in its entirety.

Jurors’ Possible Viewing of Family-Violence Display

          In his third issue, appellant argues that his “sentencing hearing violated due process when the jury was allowed to see” a domestic-violence display within the courthouse because the display “had an impact on the jury and was an outside influence . . . .”

          The complained-of display was about 20-feet long and hung from floor to ceiling inside the courthouse, on the second floor, on which was also located the courthouse cafeteria. Jurors, court personnel, and other visitors ate lunch there. The display consisted of a collage of artwork and writings made by victims of domestic violence and by the District Attorney staff who worked with those victims. The display was put up because October, the month of appellant’s trial, was National Domestic Violence Awareness Month.

          Appellant’s affidavit stated that the children’s artwork and writing “begg[ed] the persons who saw the display from letting persons charged with child molestation from getting away.” Appellant averred that one young girl’s letter “begg[ed] protective services to not let her daddy come home and beat her and mommy again” and that some pictures in the display had “stick figures of young children and mothers with daddy’s (stick figure) figure having a penis drawn on with an arrow pointing to it and listing the penis by ‘person’s name.’” Appellant averred that the stories told in the display by the children “were very heart wrenching and distressful.” In contrast, the affidavit of the District Attorney’s Director of Family Violence Services, Jennifer Varela, stated that the artwork in the display was about domestic violence and implied that appellant had misinterpreted the display to concern child molestation. Varela’s affidavit also attached one child’s drawing—the drawing to which Varela believed that appellant was referring when he described a display picture with an arrow pointing to a father’s penis—which showed a mother, father, an child and had an arrow pointing to the pregnant mother’s stomach with the notation that “Zach” was the unborn child’s name. Becker testified in his affidavit made for the State that he “did see jurors in this case look at the display.”

          Although some jurors saw the display, Becker’s affidavit for the State explained that he did not challenge the matter because he “did not want to draw any more attention to the jurors about the display, which would have happened if the Judge would have [sic] questioned the panel about what was depicted.” Additionally, the best witnesses to testify to any subjective influence that the display may have had over the jury’s deliberations were the jurors themselves. Although the trial court quashed all juror subpoenas and required the new-trial hearing to be conducted by affidavit, the court in no way forbade the defense from presenting juror affidavits. Appellant did not do so.

          Accordingly, we overrule appellant’s third issue.

Denial of Ability to Conduct Full Evidentiary Hearing

On Motion for New Trial

          In his second issue, appellant contends that “[t]he trial court erred by refusing to allow the defense to continue with their [sic] evidentiary hearing and instead relying upon affidavits,” thereby violating the Rules of Appellate Procedure and his due process rights and preventing him from meaningful cross-examination. Specifically, appellant asserts that (1) jurors needed to testify live so that they could explain the effect of the family-violence display and their improper consideration of parole during deliberations; (2) he needed to probe the inconsistencies between Becker’s competing affidavits; (3) “only after [an evidentiary] hearing could the trial court make an informed decision whether to grant or deny the Motion for New Trial” (emphasis in original); and (4) he was not allowed to obtain affidavit testimony of prosecutor Mostia and Varela, both of whom supplied new-trial affidavits for the State.

          Appellant did not object at the new-trial hearing on the basis of due process, but instead on the basis of the Confrontation Clause. Thus, appellant has not preserved his Due Process argument for review. See Tex. R. App. P. 33.1(a). Furthermore, to the extent that appellant complains that the trial court erred in refusing live testimony of Mostia and Varela (or Becker) to the extent that he could not obtain any affidavit testimony from them between the pertinent new-trial hearings, he has waived those complaints for failure to raise them as objections and to obtain rulings. See Tex. R. App. P. 33.1. Moreover, at a new-trial hearing, “[t]he court may receive evidence by affidavit or otherwise.” See Tex. R. App. P. 21.7; Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.—Austin 2000, pet. ref’d) (“In hearing the motion for new trial, the trial court may receive evidence by affidavit or otherwise. If they are offered and admitted in evidence, sworn motions and affidavits may serve as proof of allegations for a new trial.”). The trial court was well within its authority to require testimony by affidavits at the new-trial hearing, and appellant has not shown that anything about that ruling violated the Confrontation Clause or the appellate rules. See Ammons v. State, 2003 WL 1906404, No. 07-02-0123-CR, at *5 (Tex. App.—Amarillo Apr. 18, 2003, no pet.) (memo. op., not designated for publication) (rejecting contention that requirement to present attorney’s testimony by affidavit at new-trial hearing, rather than by live testimony, was abuse of discretion under rule 21.7 or violated Confrontation Clause, the latter holding being made because appellant had not cited authority other than constitutional provision itself).

          In addition, we note that the procedural posture of the case supports the trial court’s decision to receive new-trial testimony by affidavit. Appellant filed his motion for new trial on December 1, 2003, 34 days after sentence was imposed. On December 8, 2004, appellant and the State agreed to reset the new-trial hearing until January 7, 2004, a Wednesday—the 71st day after sentencing and just five days before the trial court’s power to decide the motion would expire on Monday, January 12, 2004. See Tex. R. App. P. 21.8(a). On January 7, the trial court was in the middle of another trial, but it allowed appellant to present Dr. Levinson for live testimony on his motion. At the end of that testimony, the trial court had to continue the hearing until Friday, January 9 because of the on-going trial. When the parties arrived on the morning of January 9, the trial court advised them that the trial was still on-going and that the jury would be returning shortly. The trial court then ruled that it would allow the remainder of the new-trial evidence by affidavit alone, given time constraints brought on by trial and by the court’s plenary power’s expiring in three days, and it continued the hearing until the following Monday morning. The trial court offered to allow appellant through late Monday afternoon to obtain any affidavit testimony that he needed. Given the fact that another trial was on-going the week before the court’s plenary power expired and that, on the 41st day after sentencing, appellant had agreed to postpone the hearing until the 71st day after sentencing, it is not surprising that the trial court both determined that it would have to proceed on affidavit testimony alone and that it would overrule appellant’s objections to its doing so.

          We overrule appellant’s second issue.

Misreading of Indictment at Arraignment

          In his fourth issue, appellant asserts that he was arraigned in trial court cause number 945667 (appellate cause number 01-03-01141-CR) on a crime for which he had not been indicted because the indictment was misread. See Tex. Code Crim. Proc. Ann. art. 26.11 (Vernon 1989) (requiring, at arraignment, that indictment be read and that defendant be asked if he is guilty or not). Appellant relies on what he claims is an analogous line of case law holding that the total failure to admonish a defendant under Code of Criminal Procedure 26.13, or an incomplete arraignment under that article, is error.

          We reject appellant’s underlying assumption that the law applying to admonishments, which are generally given after arraignment to determine that a plea is knowingly and voluntarily made, can be applied to an arraignment, the purpose of which is merely to ascertain the defendant’s identity and to receive his plea. Appellant cites no authority that applies the law of admonishments on which he relies to an arraignment.

          Moreover, law exists that specifically governs the arraignment process, and that law requires a defendant to object timely to both the total failure to arraign and to irregularities concerning the arraignment to preserve error. See Mulder v. State, 707 S.W.2d 908, 917 (Tex. Crim. App. 1986) (holding that total failure to arraign was waived for lack of timely objection); see Craig v. State, 480 S.W.2d 680, 684-85 (Tex. Crim. App. 1972) (overruling challenges to prosecutor’s alleged alteration of indictment, supposedly contrary to statute governing indictment’s amendment, at arraignment, and to jury, because appellant did not object and because record did not show what was read); Stewart v. State, 693 S.W.2d 11, 15 (Tex. App.—Houston [14th Dist.] 1985) (holding that appellant waived procedural error in arraignment for failing to object), aff’d on other grounds, 718 S.W.2d 286 (Tex. Crim. App. 1986). Appellant did not object at any time to the indictment’s misreading. Accordingly, we hold that he has waived this challenge. See id.

          We overrule appellant’s fourth issue.

Withdrawal of Guilty Plea

          In his fifth issue, appellant asserts that “the trial court erred by failing to withdraw the plea to [trial court cause number] 945667 because of evidence of innocence.”

“When evidence introduced before a jury (when a defendant has entered a guilty or nolo contendere plea) makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required, sua sponte, to withdraw the accused’s guilty or nolo contendere plea and enter a not guilty plea for the accused. . . . For the rule to come into play the evidence must go farther [sic] than just tending to show a defensive issue, it must reasonably and fairly present such issue before the trial court is required to withdraw the guilty or nolo contendere plea.”

Montalvo v. State, 572 S.W.2d 714, 715 (Tex. Crim. App. 1978) (quoting Varela v. State, 553 S.W.2d 111, 112 (Tex. Crim. App. 1977)) (citations omitted). However, that is not the case here. For the reasons that we explained in discussing appellant’s challenge that Becker was ineffective for not moving for directed verdict in this cause, we hold that there was evidence showing appellant’s guilt. Appellant points to no other evidence allegedly showing innocence in this cause. We thus reject appellant’s contention that the trial court erred in failing to withdraw his plea sua sponte.

          Appellant also argues that he filed a motion requesting that his plea be withdrawn. The document to which appellant refers is a motion that appellant filed on October 27, 2003, the date that trial began, entitled “Defense Motion at Time of Entering Plea of Not Guilty,” the purpose of which was to request that a jury assess punishment. The use of the form motion was a patent mistake because, on that same day, appellant pleaded guilty before the court and then again before the jury; he had indicated in writing 20 days earlier that he would plead guilty; and the entire course of the proceedings—the evidence presented, the theories that the parties espoused, the trial court’s voir dire comments (to which appellant did not object), and the arguments that both counsel made—indicates that everyone understood that appellant was actually pleading guilty. Moreover, the document to which appellant refers did not request that his plea be withdrawn.

          Accordingly, we overrule appellant’s fifth issue.

          Sufficiency of the Evidence Supporting the Guilty Plea

          In his sixth issue, appellant asserts that “the conviction for [trial court cause number] 945667 should be reversed as there was insufficient evidence to substantiate the plea.”

            We assume, although he does not say so expressly, that appellant’s argument is based on the belief that there was no evidence that appellant’s sexual organ contacted the complainant’s anus. We reject appellant’s argument for the same reasons that we have rejected it above in our discussion of whether Becker was ineffective for not moving for directed verdict and in our discussion of whether the trial court erred in not sua sponte withdrawing appellant’s guilty plea. Moreover, “[i]n felony cases, a plea of guilty before the jury ‘admits the existence of all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed.’” Holland v. State, 761 S.W.2d 307, 312 (Tex. Crim. App. 1988) (quoting Ex Parte Williams, 703 S.W.2d 674 (Tex. Crim. App. 1986)).

          We overrule appellant’s sixth issue.

          State’s Closing Argument

          In his seventh and final issue, appellant complains of three allegedly improper closing arguments by the State.

          Appellant did not object to any of the complained-of arguments. Accordingly, he has waived his complaints. See Valencia v. State, 946 S.W.2d 81, 82-83 (Tex. Crim. App. 1997) (holding that defendant must object to improper closing argument—even incurable argument—to preserve error).

          We overrule appellant’s seventh issue.

 ConclusionWe affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).