Henry D. Sanders v. State

• Court: Court of Appeals of Texas
• Decided: April 30, 2013
• Docket: 07-12-00213-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-12-0213-CR ________________________

Henry D. Sanders, Appellant

v.

The State of Texas, Appellee

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2011-431,742, Honorable John J. McClendon III, Presiding

April 30, 2013

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Henry D. Sanders was convicted of “sexual assault-child bigamy.” He challenges

the conviction by arguing that 1) the evidence was insufficient to sustain the verdict, 2)

the trial court erred in admitting evidence of extraneous offenses, and 3) he received

ineffective assistance of counsel during the punishment phase. We affirm the judgment. Sufficiency of the Evidence

According to appellant, the evidence was insufficient to support his conviction

because testimony from the child victim and her mother was inconsistent or

contradictory. The issue is overruled.

We review challenges to the sufficiency of the evidence under the standard

discussed in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Furthermore,

the testimony of a child complainant is alone sufficient to sustain a conviction. Cantu v.

State, 366 S.W.3d 771, 775-76 (Tex. App.–Amarillo 2012, no pet.); Glockzin v. State,

220 S.W.3d 140, 147 (Tex. App.–Fort Worth 2007, pet. ref’d).

Here, the child complainant testified that appellant had engaged in sexual

intercourse with her. Other evidence discloses that 1) the complainant was fifteen at

the time, 2) the complainant’s mother encountered the victim and appellant together in

bed wherein appellant’s and complainant's underwear were off or down, 3) complainant

was on her knees in bed facing away from appellant when found by the mother, 4) it

appeared to the mother that appellant had been putting his penis in her daughter’s

vagina from behind, 5) the complainant had a recent tear at the bottom of her vaginal

area consistent with penetration, 6) after his arrest, appellant called the complainant

and her mother from jail on more than one occasion and said, “the devil made him do

these things,” he would take all the counseling he could get, that he was going to “run to

the church house,” and he “didn’t mean for nothing to happen,” 7) in other telephone

calls, he told his wife to “school” the children on what to say when they were

interviewed, 8) appellant had once choked the complainant for talking to a boy on the

phone, and 9) appellant also had sexual relations with the complainant on another

2 occasion when she was fourteen. This evidence permits a rational trier of fact to

conclude that appellant was guilty of the crime charged beyond a reasonable doubt.

Inconsistencies or contradictions in the foregoing evidence did not strip it of probative

value. At best, they merely created issues of fact for the jury to resolve. Franco v.

State, 339 S.W.3d 793, 794 (Tex. App.–Amarillo 2011, no pet.). And, we defer to the

way in which they were resolved. Brooks v. State, 323 S.W.3d at 899.

Extraneous Offenses

Next, appellant complains of the admission of extraneous bad acts or crimes.

The latter consisted of his once choking the victim for talking to a boy on the phone and

of his engaging in a prior sexual liaison with the complainant. This evidence was

admitted without the State proving, beyond reasonable doubt, that the acts occurred,

according to appellant; thus, it allegedly was inadmissible. However, no one objected to

the testimony involved. Consequently, the matters were not preserved for review.

Malpica v. State, 108 S.W.3d 374, 377-78 (Tex. App.–Tyler 2003, pet. ref’d). And, the

issue is overruled.

Ineffective Assistance of Counsel

Finally, appellant claims he received ineffective assistance of counsel at the

punishment phase of the trial because his attorney advised him to admit to and

apologize for committing the sexual assault. Purportedly, this was deficient conduct

because appellant received a life sentence. We need not conjecture on whether such

advice would have been considered deficient if the sentence was less than that levied

here. It is enough to say that a trial strategy founded upon confessing or apologizing for

the purpose of seeking leniency has been deemed reasonable and beyond the pale of

3 ineffectiveness. See Idehen v. State, No. 14-05-00901-CR, 2006 Tex. App. LEXIS 4395,

at *6-7 (Tex. App.–Houston [14th Dist.] May 18, 2006, no pet.) (not designated for

publication) (stating that “even assuming counsel advised appellant to confess during

punishment, appellant fails to show that the suggestion was not based on reasonable

trial strategy, such as seeking to appear honest or remorseful with the jury”); see also

Flemming v. State, 949 S.W.2d 876, 881 (Tex. App.–Houston [14th Dist.] 1997, no pet.)

(declining to find ineffective assistance when counsel failed to suggest during closing

that the defendant was not guilty because it was “plausible” that counsel “concluded that

the best strategy might be to appear open and honest to the jury in hopes of mitigating

punishment”). Like the situation in Idehen, the jury here had also “found beyond a

reasonable doubt that appellant sexually assaulted [the child victim]”; so the suggestion

that appellant confess, to conceivably mitigate punishment, is not so outrageous that no

competent attorney would have pursued it. The issue is overruled.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice

Do not publish.