Louis D. Criswell v. State of Texas
Opinion
V.
A jury found Louis D. Criswell to be guilty of one count of aggravated sexual assault of a child and one count of indecency with a child. The jury assessed punishment for the aggravated sexual assault of a child at confinement for life in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. The jury assessed punishment for the indecency with a child at confinement in the Texas Department of Criminal Justice, Institutional Division, for a term of 20 years, and a $10,000 fine. Appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). The brief concludes no error which would arguably support an appeal is presented, a conclusion with which we concur. On August 2, 2001, Criswell was given an extension of time in which to file a pro se brief if he so desired. Criswell filed a pro se brief that raises four points of error.
Point of error one challenges the legal sufficiency of the evidence to support the conviction. In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).
The eleven-year-old victim, A.C., testified that her father's longtime live-in girlfriend, Barbara Diane Mullins, took A.C. over to Criswell's home on many occasions. Criswell would give Mullins crack to smoke while Criswell inserted his fingers into A.C.'s vagina and made A.C. rub Criswell's penis. Then Criswell and Mullins would engage in sexual intercourse with A.C. in the room.
Mullins gave two statements to the police. In her second statement, Mullins stated that she could not recall whether she told Criswell that he could "mess with" A.C. if he gave her another rock, but admitted that he gave her cocaine, that she went into the bathroom and smoked it, and that A.C. was lying on the bed when Mullins returned to the bedroom. Mullins stated that A.C. later told her that Criswell had "messed with" her that day, and that she did not take A.C. back to Criswell's. In her first statement and at trial Mullins admitted to taking A.C. over to Criswell's once to buy cocaine, but denied taking the child inside.
The outcry witness, a former live-in girlfriend of Criswell's testified that she believed A.C., but that three or four weeks before the trial A.C. had stated to her, "I lost my momma because of a lie. I don't want to lose you because of a lie." The next day, the outcry witness asked if A.C. was telling the truth about Criswell; A.C. reaffirmed that Criswell had sexually assaulted her. The victim never retracted her accusation against the appellant.
A conviction for sexual assault may be based on the uncorroborated testimony of the victim if the victim is seventeen years of age or younger at the time of the offense. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2001). Criswell argues that the victim's testimony is insufficient to support a finding of guilt because the prosecutor asked the complainant leading questions. Few of the prosecutor's questions to the complainant could be considered leading. At any rate, the use of leading questions is generally permitted in cases dealing with child witnesses. Clark v. State, 952 S.W.2d 882, 886 (Tex. App.--Beaumont 1997, no pet.). Even if some of the child's testimony was inadmissible due to manner in which it was elicited, even erroneously admitted evidence is properly considered in a sufficiency review. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994). Based on the victim's testimony, a rational jury could have found the essential elements of sexual assault beyond a reasonable doubt. Point of error one is overruled.
Point of error two raises the issue of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, appellant must show both deficient conduct and prejudice. In other words, a defendant must demonstrate that his attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that but for counsel's ineffectiveness, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard applies to ineffective assistance of counsel complaints at both the guilt-innocence and punishment phases of the trial. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Criswell complains that: 1) defense counsel failed to ask for a jury shuffle or object to the jury, which Criswell argues was not exercising reasonable interest; 2) counsel objected based upon an assumption that A.C. testified that Criswell had not made her touch his penis, when she had actually testified to the oppo
Free access — add to your briefcase to read the full text and ask questions with AI
Louis D. Criswell v. State of Texas (Louis D. Criswell v. State of Texas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.